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Psystar Will Countersue Apple
An anonymous reader sends us to CNet for news that Apple clone maker Pystar plans to countersue Apple. We discussed Apple's suit last month. "Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar... will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is 'an anticompetitive restraint of trade,' according to [an] attorney... Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages."
First sale doctrine allows PsyStar to resell copies of OS X, but not install it on their PCs!
MS vs Zamos is of interest ONLY if PsyStar was strictly reselling OS X. More interesting is Jacobsen vs Katzer, where the Artistic License is an enforceable copyright restriction. In this case the issue is whether the OS X EULA contains an enforceable copyright restrictions:
1) "Single Use and Family Pack License for use on Apple-labeled Systems"
2) "General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the âoeApple Softwareâ) are licensed, not sold, to you by Apple Inc. (âoeAppleâ) for use only under the
terms of this License, and Apple reserves all rights not expressly granted to you."
3)"Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so."
GPL Deconstructed
"If I make a product, I have the right to refuse to allow you to sell it at your store."
No, sorry, you do not. You have the right to refuse to sell the product to me - which to an extent prevents me from selling it. However, you have no legal or moral right to force me to not sell your product after I have legally purchased it from you, or someone you have authorized to sell it.
Once you put an item on the market, your control of it is gone. If you do not like that, do not sell it.
"The EULA is intended for individuals, and while they might strike parts of it down, the judge should side with Apple's right not to allow a 3rd party to manufacture a product containing Apples' products."
The right of first sale arguably trumps Apple's EULA. Quite a few states do not even allow EULAs to remove certain rights of the user/middle man.
Great Intellect...
Why is the comparison invalid? You are free to install OS X on your own machine as long as you do not distribute the code! This is not because the license allows it, but because you are not commiting copyright infringement.
In this case PsyStar is both installing OS X AND distributing the copy they installed.
So the comparison is valid: distribution of copyrighted code is copyright infringement and is the power that allows copyleft to exist. And, incidentally, allows Apple to argue copyright infringement.
GPL Deconstructed
In Apple's case, you aren't allowed to copy the OS from disc to computer
Not so. Read USC 17, Section 117:
(a) Making of Additional Copy or Adaptation by Owner of Copy.â" 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.
The first condition states that the copyright owner cannot restrict you from making copies of their software if this is an essential step in using the software (eg, copying from CD to hard disk and then from hard disk to RAM).
The second condition is also important but for a different reason (the right to make an archival copy).
It was a really good paper.
You've got the right idea, but you're applying it backwards.
Because it is now an open and popular platform, the existence of substantially similar and functionally equivalent alternatives actually makes a stronger case for Apple.
Consider Data General. The linchpin of the decision was that the CPU was useless without the OS--that without the tied product, the tying product had no utility. Without that detail, the decision does not work. It's very different from the case of a bundle of an x86 computer system and an x86 OS. There are dozens of compatible operating systems and dozens of compatible hardware manufacturers. You don't have a paperweight when you buy any kind of computer, because you don't need a specialized OS to run it. Apple and Psystar are missing the critical element of Data General and Digidyne.
Attempts to reverse it, such that the tying product is the OS are amateur at best. The OS does not come with a computer attached. It is sold as an accessory and upgrade by a company to existing users of that same company's products. There's no requirement of a purchase when you buy the OS--it's not being tied. The sale is premised on the existing possession of a Mac, but this is nothing new. Upgrades are always sold in this manner; it's not unique to software, either.
It's promotional availability: buy one, get one free. You can't say that you can't get the tied product (the free item) unless you buy the non-free one. Promotional tying is also quite common in bundle packages, e.g., toothpaste with a toothbrush for $5, while the toothpaste alone is $4 and the toothbrush alone is not available for sale. You can't demand the toothbrush for $1. There are thousands of examples of favorable pricing or special product availability based on a prior purchase.
That Apple chooses to sell OS X at a particular price, for its existing customers only, simply does not require that that price be made available to anyone else. The same can be said of Microsoft and its OEM and upgrade pricing policies, and the same can be said for companies who condition the sale of accessories, add-ons, upgrades, etc. on the prior purchase of the underlying product.
It is not immoral or illegal to set the terms under which you will or will not sell something. It further is not incumbent on that party to devise a foolproof system--the argument that an individual can buy one off the shelf and finagle an installation out of the disc is not convincing. It's an argument that seems to be begging for invasive sales procedures and DRM. Apple offers owners of its computers a good product at a low price and trusts consumers to honor that.
Showing up to say that Apple is getting what it "deserves" by having a desirable product at a below-cost price, sold over the counter without restriction or complication, and that Apple's business model is not their concern is exactly why corporations hate consumers, especially the kind that often populate this forum.
Do you even lift?
These aren't the 'roids you're looking for.
Damn Nissan for not letting me put a Ford engine in my Bluebird!
Way to miss the point.
Let's say you could, mechanically, put your Ford engine in your Bluebird. Would Nissan or Ford sue you for doing so?
Your modified Bluebird actually turns out pretty well, and you decide to call it a Ostrich (it's a bird that doesn't fly) and sell it. You buy some Nissan Bluebirds and some Fords, and move the engines over. Would Nissan or Ford sue you for doing so?
The point isn't that Psystar wants to make Apple make OS X so you can run it on their computers, the point is that you already can run it on their computers and Apple is suing to prevent them from carrying out that distribution. (And Psystar is suing back saying that Apple's requirement that you use OS X only on their hardware -- roughly equivalent to Nissan saying that you can't mod their car -- is illegal.) I have pretty conservative (with respect to current laws) opinions on IP, but even I think that Apple is in the wrong here.
Close, but not really there yet. PC - Personal Computer "A personal computer (PC) is any computer whose original sales price, size, and capabilities make it useful for individuals, and which is intended to be operated directly by an end user, with no intervening computer operator." http://en.wikipedia.org/wiki/Personal_computer
Sometimes when I'm working on projects things disappear, I suspect gremlins.
The doctrine of first sale comes into play here. Right now the courts have issued contradictory rulings on it. But if it's eventually decided that software is sold, not licensed, then PsyStar would be in the clear. They are simply reselling a copy of OS X which they legally bought and paid for.
Your interpretation falls under the alternative opinion that software is licensed, not sold. Under your interpretation, Microsoft can prohibit you from selling your unused copy of Windows, you can't sell your copy of Oblivion or Halo 3. Heck, even book, music, and movie publishers could claim they're simply licensing their product to you, so you can't resell it if you don't want it anymore.
Personally I wouldn't want to live in a world which works the way you want it to. IMHO if it sat in a box on a store shelf and I made a one-time payment for perpetual rights to use it, I've bought it. If I enter into a contractual agreement for recurring fees and my right to use it ends when I stop paying (e.g. World of Warcraft), then I've licensed it.
Your post is correct; unfortunately, "PC" is also used (famously in the "I'm a Mac, I'm a PC" ads, and elsewhere) to indicate, in a lawsuit-paranoid way, a computer that ships with Windows without mentioning Windows by name.
Apple has never actually used the TPM and it is not even on the newer boards.
Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.
According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X.
What's really funny, is that usually discussions about "buying OS X" are explaining how it's cheaper than Windows because $129 gets you a "full version", rather than an "upgrade".
Actually, most people say that its cheaper than buying windows because $129 gets you the "full version" rather than the "Not-quite-Ultimate-non-business-but-still-better-than-basic 32-bit Vista Upgrade Edition".
Just for fun I checked on Newegg to see if it was still like this, and theres a Basic, Business, Premium, and Ultimate version, in both upgrade an non-upgrade variants, and in both 32-bit and 64-bit variants.
The "full version" of vista, Ultimate, is $169 on Newegg, which, if I need to remind you, is more expensive than the OS X "full version" upgrade.
In this case PsyStar is both installing OS X AND distributing the copy they installed.
You seem to be confused about what distribution actually means.
If I buy a copy of a particular program, install it on my computer, and then sell that computer to someone else, that is perfectly legal under copyright law. The only problem arises if I try to install the same purchased copy on another computer, because then I am making a copy that falls under the restrictions of copyright law.
You see, copyright law covers only the right to make copies. It does not cover the right to distribute (or redistribute) copies that were legally made. I don't understand why that's so hard for people to understand. I mean, it's right there in the name: "copy right".
Under capitalism man exploits man. Under communism it's the other way around.