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Apple Says Booting OS X Makes an Unauthorized Copy
recoiledsnake writes "Groklaw has an extensive look at the latest developments in the Psystar vs. Apple story. There's a nice picture illustrating the accusation by Apple that Psystar makes three unauthorized copies of OS X. The most interesting, however, is the last copy. From Apple's brief: 'Finally, every time Psystar turns on any of the Psystar computers running Mac OS X, which it does before shipping each computer, Psystar necessarily makes a separate modified copy of Mac OS X in Random Access Memory, or RAM. This is the third unlawful copy.' Psystar's response: 'Copying a computer program into RAM as a result of installing and running that program is precisely the copying that Section 117 provides does not constitute copyright infringement for an owner of a computer program. As the Ninth Circuit explained, permitting copies like this was Section 117's purpose.' Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"
Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?
I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.
The dogcow says "Moof!"
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy. End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
There's a copy of Red October on my retina too for a couple of nanoseconds too - I suppose the lawyers will be knocking on my door pretty soon .
"Before God we are all equally wise - and equally foolish"
Albert Einstein
Someone wants to make a buck off of OS X without paying the Apple tax and Apple is upset. Is anyone really surprised?
Groklaw and PJ seem to have turned the site into a slanted conspiracy site. She was insinuating that MS could be likely behind Psystar(why would MS risk invalidating EULAs on which their cash cows thrive?). Even in this article, PJ doesn't seem to defend the freedoms that she seems to hold dear in her Linux vs. SCO articles. Infact she seems to hold the DMCA dear and Groklaw has gone from giving a nice objective look at things to becoming like BoycottNovell, which is another site operating on anti-MS-at-all-costs grounds. She even fails to highlight the egregious abuse of copyright law that Apple is trying here which would ruin freedom to even run a program without paying for double licences. In fact she appears to side with Apple on this.
This space for rent.
Actually, wasn't the idea that copying a program from disk to RAM need specific permission, something that was ruled on very long ago?
I remember having a serious WTF feeling maybe 10 years ago when reading about a judge's ruling.
"Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"
Since Apple's license for OS X says that it can only be run on Apple hardware, the in-memory copy is just as unauthorized as the rest of them.
A.
...bringing you cynical quips since 1998
This is pretzel logic at its worst. Memo to Apple: build a machine that has a price point between the Mac mini and Mac Pro, that isn't an all-in-one machine, and is internally expandable, and people will buy that machine from YOU rather than buy a PC and make a Hackintosh. People know the difference between a Mac and a crappy PC. They know that the Mac will be the better quality machine. They will pay more -- not a King's Ransom, but modestly more -- for Apple quality. This is why the MacBook has pwn3d most lappies for years, and why the MacBook Pro is the best damn lappie experience currently available. Build something BETTER for a little more than a Dell or a HP or a Compaq and you will have the business back. I guarantee it.
Knowledge is power. Knowledge shared is power multiplied.
The Supreme Court indicated in Eldred v. Ashcroft that it was comfortable with the view that Copyright governs even private copying like moving a programs bits from a CD to hard disk or from hard disk to RAM. This is a legally settled matter, and Psystar is quite wrong.
If you read Apple's response they do indeed make that claim. And since it is in a legal case I guess you can say they are serious. The real question is are they correct?
Psystar doesn't own the software and Apple does. Psystar purchases copies of Mac OS X on DVD, along with a license to use the software in certain ways, but that's IT.
Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.
If I'm I'm Psystar's legal team, I'd argue they make the same unauthorized copies that Apple's hardware owners make. If the Psystar process makes unauthorized copies, then Apple's does too.
I don't know who to root for here. If apple wins then all CD/downloadable music is then by the nature of the distribution system given a derivative allowed copyright license when sold. As the only way to play it is to make several derivative copies of the material. Where the base structure is rearranged and then finally processed Digital to Analog.
1) CD/base store
2) CD buffer, linked associated chain
3) dram copy of data, another linked associated chain with OS and application page tracking
4) audio card input buffer, another linked associated chain
5) audio card processor, digital to analog conversion and final digital encoded analog value, then analog sound
The RIAA and MPAA are going to want to weigh in on this if it goes anywhere.
Every time there is a computer-related Copyright suit, some bright light notices that... OMG, someone's claiming in-memory copies are unauthorized.
117 says: "it is not an infringement for the owner of a copy of a computer program to [...]". Apple asserts that Psystar does not own the copy they are duplicating, therefore 117 does not apply.
IM-non-lawyer-O, the ownership vs licensing debate is pretty well settled in Apple's favor. So if you buy a copy, you don't need additional permissions to run it. If you license a copy, the license needs to grant you permission to run it.
Well, that was easy.
The difference would be if the EULA specifically gives Apple hardware owners the right to make that extra copy.
Psystar seems to be arguing that the owner of a copy of a program has inherent rights to load it into ram because of section 117, Apple says no, you need additional authorization you get from the EULA. If the EULA doesn't give anyone this right to a 3rd copy then you'd be correct.
Anytime its something people dont want to hear, right away the name calling starts.
Talk about JFK magic bullet, WMD in Iraq, Racak in Yugoslavia, 9/11 and anything that is not in the official truth and people get all defensive.
Read the Comes vs Microsoft documents on Groklaw and you will see that all those 'theories' people had about Microsoft barely scratched the surface.
Hundreds of juicy quotes from the head people in Redmond are to be found in those court documents.
You show me a 'Microsoft' theory that you dont agree with and I can show you equivalent version of their past deeds.
We know about Baystar and other proxies that MS uses and we know about their shady deals of the past. While they might not be reprensentative of the present (nothign coming from the head of the company says otherwise.), their history is so replete with examples of underhandedness that to simply close your eyes and cover your ears and go LALALALALALA and crying conspiracy is what you suggest.
History is there to teach us lessons about the future and those who dont heed those lessons are doomed to repeat them.
once bitten, twice shy... better safe than sorry...
I got also cutesy sayings just like you...
Oh yeah, ostrich head in sand... lets not forget that classic.
How does not being able to make a copy in RAM relate to VMWare ?
Are we no longer allowed to use virtualization ?!
The copy loaded into RAM is not infringement according to 17 USC 117, but that only holds if the copy being loaded _from_ is a legal copy. So if the copy Psystar loads onto the hard drive is unlawful, the copy in RAM is a further unlawful copy. That's not controversial (as a matter of law, anyway; it's pretty stupid as a matter of fact) and not really central to Apple's case.
So MP3 players are also making illegal copies of songs when buffering. This of course depends on what kind of license/DRM the music has.
Uh oh. Imagine, if Apple wins this, then REMEMBERING A SONG OR THINKING ABOUT A MOVIE SCENE will have the MAFIAA at your door in a flash, since after all you made an "illegal copy" in your brain...
Seven puppies were harmed during the making of this post.
Apple hardware owner make *authorized* copies, because those copies are allowed within the terms of license Apple grants. Pystar customers are *not* covered by that license and therefore are making *unauthorized* copies.
I think it might be silly to argue that ephemeral copies constitute copyright infringement, but there is clearly a distinction between authorized and unauthorized copies that comes down right where Apple says it does.
Fuck Apple.
So, is every program considered an un-authorized copy? After all, every program can be loaded into memory....
Here's my understanding of the situation: In both the Glider case and this one, we're talking about the original software being loaded into RAM potentially with third-party modifications to parts of it. This means that, even if the original software (the WoW client, and Mac OS X) was bought and paid for, and a RAM copy at runtime would be subject to the section 117 exception, there is room to argue that what is being loaded is not the bought and paid for authorized copy, but an unauthorized derivative work made by adding the third party modifications.
However, the section 117 exception gives a specific reason that the software might be allowed to be altered. Take a look (from http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000117----000-.html ):
"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 [...]"
So an "adaptation" of the software is allowed if it is necessary to use the software with a machine. Now a court could easily whinge its way around interpreting this as a compatibility measure, but if it doesn't, then in Psystar's case, as long as the third-party modifications are deemed by the court to be only for the purpose of enabling Mac OS X to run on a general purpose PC, then the RAM copy (and potentially all the modified copies) aren't infringing.
Anyway, I don't think this is a big obstacle to Apple; there seems to be enough case law in the US that has allowed for very broad enforceability of software licensing agreements that Apple can still probably out-lawyer Psystar into the dust for breaking their "Apple-labeled" license provision, even without a finding of copyright infringement.
It's that part of the case I'm most interested in, as "Apple-labeled" is a strange choice of wording, and Apple has in the past employed it willy-nilly (for instance in the license of Safari for Windows when they pushed out millions of copies as a selected-by-default Quicktime/iTunes upgrade [http://news.cnet.com/8301-10784_3-9904445-7.html])
So, we're opposed to copyright in this article discussion, Slashdot? I'm confused, because the GPL is a copyright license, and violations of the GPL are met with anger on the part of Slashdot's readers. However, any non-GPL situation in which copyright infringement occurs is met with jeers and sarcasm.
Supporting the GPL's copyright protections in some situations while favoring copyright infringement in other situations benefits you guys by getting you free stuff in both kinds of situations. Your viewpoints are driven by pure selfishness.
I'm sure I'll get modded down again for speaking out about this, but I believe it needs to be pointed out.
17 USC 117 starts out thusly:
Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of section 106 [17 USC 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:
(emphasis added). The word "owner" is significant. When 17 USC 117 was originally written, it said something like possessor rather than owner, but during the ratification of this law, that was changed in Congress to owner, indicating that Congress really does intend this to apply to owners, not mere possessors.
If the purported sale of the copy that ended up in Psystar's possession was conditioned on acceptance of contractual terms that Psystar is failing to honor, it is possible they are possessor of that copy, but not owner, and thus do not get to use 17 USC 117.
I've got 7 computers around me right this moment. Some are running virtual machines. So, two copies of the OS each computer, more two copies each virtual machine. Does that mean I'm a very successful pirate?
Onda Technology Institute
Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"
No, their attorneys are.
Have you noticed the new Acer netbook - the Ferrari One? It comes with Windows 7 64 bit running on an AMD dual core, with 2G RAM and 320G hard drive, and a 5 hour battery life. And it is a netbook, ffs, with an 11.6 inch screen. I'm probably going to buy myself one for Christmas and put Ubuntu on it in dual boot, but compared to a Macbook Air it's almost free. The prospect of actually being able to do work on 64 bit system coding while flying economy should appeal to more than one developer.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Pystar just has to change the System Configuration at time of sale ship the systems with absolutely no RAM.
Or at least 640k. It won't be enough for OS X but it will be enough for everybody to be happy.
apple hardware owners are authorized to make the RAM copy both by the license agreement with apple and explicitly by copyright law. The key point you're missing is that if the copy on the hard drive is authorized, the RAM copy is also. If the hard drive copy is UNauthorized, the RAM copy is also.
Come read my stupid blagablog. Rants and Giggles
People know the difference between a Mac and a crappy PC.
A friend of mine thought he knew the difference but after he found out that he couldn't upgrade the video card of his 24'' Apple he decided to turn it to a tv/media center for his bedroom. He listened to my advice to upgrade the PSU of his crappy Pentium system, install a low cost RAID array, get a modern 3D card, upgrade the memory to 4 GB and finally get a high quality Unicomp keyboard and a 26'' led monitor. Except for the monitor, the upgrades cost him little and his old machine feels twice as fast as the Apple.
He is fuming with Apple because he would really like to play a few modern games but the video card of this model cannot be upgraded. (He didn't research that possibility as he never thought it possible to get a desktop system for 2500 Euros with a crappy portable MXM video without the option to upgrade.)
So he often comes to my apartment just to play Gothic III on my watercooled system which by the way cost only 1500 Euros and turns his Apple to dust.
A year ago, he was about to buy a MacBook but I saved him from that mistake by asking him to compare an equally priced Lenovo. He was blown away and I think this is the time when the Apple myth started fading on him.
I am sure you are not convinced, correct? And this is my point: Apple is right. Their secret recipe is no longer how to make great computers but how to make their users feel superior. "The difference between a Mac and crappy PC" in the eyes of a Mac user is that the PC is crappy by nature while the Mac is not. It's a delusion, but one that feeds Apple since the 90s.
I love my Mac Pro. I paid gobs of bucks for it but it does everything I need and more. I don't think I would buy a Pystar computer, no matter what extremely pleasing price point they attain because (just like Coca-Cola clones) it ain't the Real Thing. And only the Real Thing is guaranteed to work with Apple's OS upgrades and all of the software available for Macintosh computers.
Nonetheless, I root for Pystar. I hope they win somehow. I hope they win outright (highly unlikely from TFA) or they win on some really lame, outlying technicality that nobody ever realized anyone could win on. And the reason why I'm rooting for them is not logical.
Apple doesn't seem to remember that the first computer I bought -- along with many others -- that ran their System Software was a Clone. Mine was made by Power Computing and it ran faster than anything Apple had released at that point. That introduction to the Apple experience was a good one and I'll bet the folks at Pystar are introducing other non-Apple OS users to the experience in a similar way. And what Apple also doesn't realize is that the second computer I bought that would give me that experience was an Apple-branded computer. Even if Apple had not killed the clone market, I still would have bought an Apple because I wanted assurances that my computer would flawlessly run everything that runs on Apple's system software.
When Steve Jobs killed the clone market, he offered nothing to the companies that made clones. There is no more Power Computing, Inc. and the other companies that made the clones don't make computers any more. There wasn't so much as a handshake. It was "sorry, can't be bothered" and boom! The companies folded. I have to say that, during these economic times, I have a lot of trouble having any sympathy towards someone who causes job loss like that.
I recognize that Jobs' argument is solid. If there are Mac clones out there, the brand gets diluted and the experience of using Apple's software may not always work out the way it should.
But I root for Pystar. They don't stand a chance but I would really like to see them keep going.
Gods don't kill people, people with gods kill people.
Under the law of agency (i.e. the one that applies to employees, contractors, and the like) there is no reason why one party cannot do virtually anything on behalf of another party, provided the agent is acting under their direction or authority. Otherwise your local computer guy couldn't install software for you. It is that ridiculous.
First sale doctrine means that Psystar already has the rights the EULA is trying to hoard for apple hardware owners.
Yeah, I know there are plenty of Apple fanbois here who will see nothing wrong with this whole situation. Really though, this is exactly why proprietary licensing is bad for society -- Apple is basically declaring that you are not allowed to build a computer than runs Mac OS X, you must BUY one from them, at a price that THEY determine. If Psystar loses, every hobbyist in the USA should take note to avoid Apple computers like a plague, because of the legal risk they impose on hobbyist groups. Anyone who was planning to buy a computer from Apple should take a moment to rethink that decision, and consider a more freedom respecting company.
Just my opinion. I will probably be flamed off the edge of the Earth by Apple fanbois though.
Palm trees and 8
A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Ugrade License for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time.
Looks like Apple doesn't grant you a license to make another copy(as they argue you do by booting). If Apple wins this, can they successfully sue their customers for making unauthorized copies when the computer boots?
Did you miss the part where it says "Apple-branded computer"? If Apple's customers use Apple-branded computers, then what do you think is the answer to your question?
Actually, the answer to your question is "Yes." Use of an operating system in a virtualized environment requires a license that permits it, or implies it. You will find that the license terms for most forms of Windows prohibit it, except for Datacenter edition. Even DCE has a restriction that if you vMotion an OS from one machine to another (failover), even if both are licensed, you may not move it back (failback) in less than 30 days without violating the license.
Naturally this has some implications for people who are stuffy about compliance and yet desperately need high availability. The cure is simple: since there is no Windows license that permits this, you must use something else.
So does that make Iphones on t-mobile unauthorized as well? Iphones useing apps that are not on the app store? Power macs with non apple upgrade cards?
apple is very close to what lexmark tried to use to lock out 3rd pray ink.
that was over a app with online play and pay to play a OS is a buy one time per system and you don't pay per mouth to use it as well.
I don't think Apple will lose this case, given the current legal situation, but if by some slim chance Psystar wins its case on the grounds that Apple should have no control over how their product is used as long as the software license is paid for, i.e. that the EULA doesn't hold in this case, then Apple will have to contend with a legion of people and companies doing this. On the one hand this would be the thing that would enable Apple to break Microsoft's stranglehold on the PC market, on the other it weigh Apple down with an enormous amount of support costs (unless they specifically exclude this in their EULA) and also do damage to their brand as it would get watered down. The latter is an important part of Apple's strength and I can understand them fighting this for dear life.
The ability to make a transient copy of a work in order to use it should not be considered in regards to copyright law. It has always been implied that you have the right to make such copies. For example, when you read a book, light creates a copy of the work on your retina, and that's how we perceive it. These copies have never been considered for the purpose of copyright, and neither has the copies floating around in peoples brains.
So every time I press the power button on a hackintosh I just broke the law? and what if you get caught? do they count how many times you've booted it up from the system logs and use those against you too?
They call it the "first sale doctrine" for a reason. You buy a disk. Does Apple get to rewrite the copyright law because half way through the installation you have to click "I agree Apple can write its own laws"? A "contract of adhesion" has a problem - the software purchaser never agreed to it.
Apple did not sell the computer, they sold the disk. Now you get to use it. Not by playing frisbee, not by using it as a target for shooting skeet, but as a computer program. You bought the copy, you get to put it in any computer you want. Some of them it even works in. Plenty of Apple-branded computers that it won't work in.
Companies keep getting Congress to put more and more restrictions on computer software in the name of, well, it kind of sounds like paranoia. Once they actually make it illegal to use the program you paid for, you might as well get away from the don't-sit-under-the-Apple-tree-with-anyone-else folks and go with open source. That way you can fix it and not have to worry when it's no longer 'supported'.
No it doesn't. That only deals with people's rights to resell their software package (media and license.) It doesn;t allow Psystar to make a modified version of OSX to load onto their PCs.
Apple already considers them unauthorized.
This space for rent.
No it doesn't. That only deals with people's rights to resell their software package (media and license.) It doesn;t allow Psystar to make a modified version of OSX to load onto their PCs.
Is installing drivers or programs or user files by Apple customers not 'modifying' the OS? And they boot it, doesn't it make an unauthorized copy in the RAM?
This space for rent.
If it says "purchase" on their website it should mean purchase. I generally support defending intellectual property but they can't have their cake and eat it too. If they want to license software they should be required to say "license" so the licensees know what they're getting into. It's false advertising to say "sell" and then bury "well OK, we didn't actually sell you anything" in the EULA. (By the way, I may support upholding intellectual property but fuck EULAs.)
Same goes for music. If I see the word "purchase" or "buy" anywhere on the site I'm "buying" it from I'm going to treat it as if I own a copy. Someone needs to counter-sue for false advertising the next time the get sued for license violation.
Psystar should have every right to modify a copy of OS X and resell it. If they make an extra copy and sell both, run them up the flag-pole; it's unclear whether they've done that.
So if this is the future...where's my jet pack?
Fairly offtopic but if copying into ram is an issue.... whenever I watch a rented movie I am making probably 3+ temporary copies of the movie while watching it. Is this illegal? (by the standards of the copyright holders/actual law both)
1. In the disk drive
2. ?On the controller itself?
3. In ram
4. ?In the CPU cache?
5. In video card memory
6. If it is outputting to a screen that does any of it's own processing you can probably add a few more here
Of course these are fractions of the movie (or even a frame of a movie) at any point in time but the entire thing passes through. Since sharing fractions of a movie over P2P software is illegal, shouldn't making multiple copies of a movie that is owned by someone else illegal?
Note: this is a joke for now but I have a feeling sooner or later it is going to end up in a lawsuit somewhere
No it's not. And even if it were, it's Apples priveledge as the copyright owner to allow people do do it under whatever terms they chose. i.e. only on APple computers.
It ain't rocket science.
And if I pay for it I should be able to do WHATEVER I WANT with it, without restriction. If I paid for it I should own it and nobody else should have any say in the matter. THAT is FREEDOM. Anything less is SLAVERY.
that was over a app with online play and pay to play a OS is a buy one time per system and you don't pay per mouth to use it as well.
I vote for worst use of the English language ever?
Why is it so hard to only have politicians for a few years, then have them go away?
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy.
Which it does. A copy is a second manifestation of an entity.
The first instance would be on the installation media (or hard drive). The second instance would be the manifestation of information in RAM.
Apple is basically the Volkswagen of computers.
There is this pretension of counter-culture. This idea that buying a mac is an act of rebellion against the 'oppressive overlords'. That Macs are 'more green' and 'more consumer friendly' and in general, Apple has done a good job of seamlessly integrating the organic/recycling/conservationist creedo into their advertising campaigns.
You see this same thing in SUV ads. Green earth and blue skies, and scenic natural wonders. They co-opt recycling visual cues to associate one of the worst offenders with 'naturalness'.
The truth is, Apple had a monopoly on academic institutions in the 1980s. They were beating the pants off IBM in those days, at least in the home/school markets. Businesses were still using IBMs, but everything at home and at school, from kindergarten to college, was Apple. The ][e was ubiquitous in middle and high schools all over the country.
IBM has never exactly been 'young and hungry', they've always been 'blue chip', but...they were definitely younger and hungrier then.
My point, really is, I think it is okay if you prefer Macs. That's fine. But the average end-user for a mac is not much different than the average end-user for a PC. Except, the PC end users don't have ignorant, sanctimonious discussions with you about how their product is better and how they bought it to not support a Big Evil Corporation. While completely ignoring that Apple is no different than Microsoft. They're equally interested in a monopoly, they're equally interested in their bottom line, to the detriment of the consumer/end-user. They're just worse at it. They're not as skilled monopolists and evil overlords. But please people. An incompetent, bumbling, drunken [generic evil person] is no less evil than one who is competent.
Hopefully, though, if Apple keeps doing things that don't really help their bottom line all that much, but do manage to sabotage their carefully cultivated public image, like this, I won't have to have this conversation with Mac-Afficionado/Soccer-Daddy man anymore.
K.
The courts just ruled in autodesk that regardless of the eula, it's a sale.
Bit of a stretch there, I've always found the IBM laptops (esp. the T series) to be the best money can buy.
Mind you, I haven't bought one after the chinese takeover, so I'm not sure how they are now.
I guess it depends if you'd rather "think different" or operate a tank. I'll take the tankpad.
Sent from my PDP-11
Where is apples desktop tower at $1000-$1500 that is not a AIO.
The imac are nice but not that good of a buy $1200 for a dual core + 9400m video? $1500 for only a duel core with 4670 256? 2k for core i5 and 4850 512? Core i7 $200 more? and only room for 1 HD that takes a lot work to get to?
mac pro at $2500 with only 3gb ram and a weak gt120? The new imac has more ram, bigger HD and better video card for about $300-$500 less.
The mini needs to have a real video card + desktop cpus and a easier to open case.
if apple had better hardware pricing and more choice pystar will be dead but apple wants to play if you can't compete go to court.
If I buy a book, I can legally do whatever I want with it.
Books don't come with EULAs.
If you offer to purchase a house, you and the sellers can put conditions on the sale. If a condition is not met, either is able to walk away from the sale. Only once the sale is completed can you do whatever you (legally) want with the property.
Software is purchased (or rather, licensed) with conditions. By opening the packaging and using the software you are agreeing to the conditions. If the conditions are not met, then the sale can be voided.
The main philosophical point in this discussion is whether you are in fact purchasing software, or simply licensing / renting it. There is a contract involved:
A software license (or software licence in commonwealth usage) is a legal instrument (by way of contract law) governing the usage or redistribution of software.
http://en.wikipedia.org/wiki/Software_license
They are has bad if not worse than Microsoft (well at least their lawyers are). If it wasn't for the brilliance of FreeBSD, Apple would be dead today.
That's why you instead see the phrase "purchase a license" or "buy a license".
Psystar is far from an "Apple User."
Psystar is a competing OEM using Apple's Software well outside of the Snow Leopard EULA, not just the "can only use on Apple hardware" provisions. It's bad faith reselling. They're not reselling the software for use on Apple hardware. They're bundling it with software to use on Psystar machines.
Apple hasn't taken any C&D approaches to Hackintosh how-to sites.
Non impediti ratione cogitationus.
"So your friend was a moron and didn't do any research?"
Are you saying people who buy Macs are morons and purchased them because they didn't do any research?
Or are you saying he was a moron for buying an expensive computer without an upgradable video card?
Or are you saying that while Macs don't have those things, he was a moron for making the assumption that the most expensive computer he could find (Mac) would have an upgradable video card?
Is that the gist of your argument?
Not even close, fortunately. Go read Title 17 of the U.S. Code some time, in particular sections 101-103,107-109, and 117.
Note especially fair use rights, archival rights, the first sale doctrine, and the right to copy as necessary to use a program on a (single) machine.
Fair use: 17 USC 107
First Sale: 17 USC 109
Copy permitted if necessary to use program: 17 USC 117(1)(a)
Archival rights: 17 USC 117(1)(b)
The law has been amended since then. Copies that are essential to use a program on a single machine are explicitly permitted. Archival copies too. Check out Title 17 Section 117 of the U.S. Code.
My copy of OS X on my hackintosh would actually boot OK on a real Mac, if not for the boot loader, not supplied by Apple, which is different. I modified some drivers to support my USB ports, but again, this was for drivers not supplied by Apple in the first place. Does this still make it an infringing or derivative copy?
Yes; I really hope it's upheld in future rulings. Apple's hoping that it won't be in this case.
So if this is the future...where's my jet pack?
...I say I don't give a flying fuck. I paid for legitimate disks of both Leopard and Snow Leopard. I've even still got the receipts for them. They've got my money. If I want to use the DVDs in my toaster I will, and His Holiness Steve Jobs & Company can make like a squirrel and hug my nuts.
I want a new quote. One that won't spill. One that don't cost too much. Or come in a pill.
Just checked the online stores of MS, EA Games, Steam, iTunes and, interestingly, Autodesk. All of them just say "buy" or "purchase" unless you go into the fine print (which I think is misleading).
So if this is the future...where's my jet pack?
that was over a app with online play and pay to play a OS is a buy one time per system and you don't pay per mouth to use it as well.
...what?
Help protect civil rights from abuse by the TSA - visit TSA News Blog.
http://www.tsanewsblog.com
But those explicit exemptions only apply if you already own a legal copy of the original. A transient or archival copy of a licensed copy is permitted. A transient or archival copy of an unlicensed copy is an infringing copy.
I am TheRaven on Soylent News
Jesus! Apple's only copyright behind all this is the GUI. The core and architecture is open source, in fact Apple has given back to the community by updating everything under the gui and making it freely available. You should be happy that Apple has supported OSS unlike other companies who hoard it for themselves. They have spent time and money into developing the technology, why are they not allowed to defend their property?
Im a troll because I disagree with you.
Jesus. Can't someone just DO THE RIGHT THING and repossess that liver they stuffed into Jobs? Preferably without sedation.
Once again, this isn't concerned with transfer of title. So first sale isn't relevant. Nor are ANY of the situations in which fair use comes into play relevant.
ripping off other peoples hard work and passing it off as their own...
http://translate.google.com/translate?js=y&prev=_t&hl=ru&ie=UTF-8&u=http://teateam.blogspot.com/2009/10/psystar-rebelefi.html&sl=ru&tl=en&history_state0=
That doesn't seem to me what the law says.
It states that the owner of a copy (which both Psystar and it's customers are, as they bought a legal copy of OSX) are explicitly allowed to copy in order tu use the program.
There don't seem to be any provisions about the kind of memory (hard drive vs. RAM). Thus, there is no distinction between an "authorized" and an "unauthorized" copy, as Apple is not able to restrict the copying of the program if it is necessary to utilize it.
As always, IANAL. I'm sure Apple has lawyers which are capable of twisting this in any direction they want.
No disagreement there.
Comment removed based on user account deletion
Once again, this isn't concerned with transfer of title
Yes, it is. Apple's attorneys would have an enormous uphill battle fighting against centuries of common law, precedent, and the Uniform Commerical Code to establish that title to those copies did not transfer at each step of the distribution chain from Apple to Psystar.
Did any of those transactions involve a signed lease indicating that the transaction was not a purchase at all, but rather a transferable lease to a copy that was owned by a third party?
Apple owns the copyright, not the copy. Nor do they have any basis for the claim that they have title to copies that they delivered indefinitely in exchange for good money upfront. Nor do they have a basis for the claim that a shrinkwrap "license" is an enforceable license that governs the use of something the customer already owns. No one needs a license to use a copy they own - unless Apple owns the copy they cannot set the terms of its use beyond what is regulated by copyright.
It is worth noting here that generally speaking a license can be retracted on demand. That is why it is a license, not a contract. If I say you can use my swimming pool, that is a license. If I change my mind, I revoke that license. Only if consideration is involved does that license become a contract. "Purchasing a license" is an oxymoron. So is "consideration free contract".
If they weren't all so fired up about their own Bootcamp product.
Not to mention their hate and deception filled commercials.
Seriously, Apple isn't a good player. They aren't friendly. They aren't honest. They ought to be the ones facing a court inquiry.
Well... loading to RAM is kind of copying. Or you could possibly (theoretically) use network-mounted disk with an installed OS image to circumvent the EULA. Although this is hypothetical (EULAs are usually per CPU, don't know about Apple's one) and not applicable to this particular case (OS X is probably not capable of this), but I can understand the reasoning behind this.
Coding etudes
IANAL, and maybe I think my 2 cents is worth a little more than what it's stamped on, but I'm gonna give this one a try: this seems like a tactic by Apple's lawyer's to make Psystar's lawyers work harder and make the case take longer. Reading the briefs, it's evident that Apple has superior lawyers (both number and quality), as well as money to pay them with; they're strong-arming them.
From what I've read in the briefs, Apple's argument rests solely on the one clause from their "Software License Agreement" (Henceforth SLA), which states OSX may only be installed and run on Apple hardware. Without this clause, Apple would have a very difficult time arguing that the the copies are truly unauthorized; whether or not the clause is enforceable is, as far as I know, untested. I believe it is easier and less risky for Apple to drown Psystar in litigation and obfuscate the issue entirely than to actually find out.
As for the creation of unauthorized copies, they're only unauthorized if the first copy is unauthorized as well. Since Psystar legally purchased the media, Apple can't argue that discs are illegal -- simply that the copies on the hard drive are because they aren't on Apple hardware. I have a hard time believing Apple's other argument, namely that an altered boot loader and kernel extensions constitute copyright infringement, especially when 1) similar bundling techniques are routinely practiced with their Windows counterparts and 2) Apple has been paid for the software it is distributing.
I have just one question for Apple: If your computers are truly a hardware and software package, why do you bother to sell the software separately?
the kind of memory used is discussed in the case law defining copy for the purposes evaluating software under copyright law. obviously, unlike a book, software is copied from some manner of ROM to some manner of RAM to be used. As this is an essential step in the proper use of software it is not, as a matter of law, considered an unauthorized copying when in the course of legal use of software.
The basic argument in the case really isnt about the number of copies made. It strikes me as silly for apple to have even mentioned this, and from the linked article it is quite clear that this was taken somewhat out of context. The real technological issue as i read it is whether Pystar is modifying OS X or simply adding applications that allow it to be loaded. Pystar likens tinkering with the bootloader to adding Firefox or Word in place of Safari or TextEdit. It seems to me that code that determines how the OS is loaded is more properly classified as a part of the OS than a mere application. It is this modification of copyrighted code, not the copying of the modified OS X into RAM, that creates the unauthorized derivative work. From there, selling this modified OS X violates apple's right to create derivatives of its copyrighted work. the summary really takes 'unauthorized copy' out of context. copy of unauthorized derivative work is more accurate. If the version of OS X Pystar sells is found to be a derivative work rather than a pure copy, the "we purchase one copy of OS X per computer we sell, so it is all legitimate' defense falls flat.
So in this case, though i'm personally of the opinion that software is property not service, i'm more persuaded by apple's argument. Pystar is altering some of apple's code and then shipping it as if it is simply reselling it.
Come read my stupid blagablog. Rants and Giggles
No, Apple's lawyer doesn't. First, Psystar failed to produce any receipts for their purchase of OS X licenses back in april when Apple asked for them in discovery. Before they can even argue first sale doctrine, they need to have proof they even purchased the damn things to begin with. Second, arguing first sale doctrine over software is not a given. There is precedents on both sides of the fence, and higher courts are mostly denying claims that software is sold and thus that first sale doctrine even applies to it.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
Actually, reading the summary judgement order from the Glider case (MDY vs. Blizzard, http://virtuallyblind.com/files/mdy/07-14-08_Order.pdf ), they come up with some ninth circuit case law, from Wall Data vs. LA County Sheriff's Dept. ( http://altlaw.org/v1/cases/1139595 ), about who a "copy of a computer program" is owned by for the purpose of s. 117, that reads much like what coiledsnake was saying. From the Wall Data case: "Generally, if the copyright owner makes it clear that she or he is granting only a license to the copy of software and imposes significant restrictions on the purchaser's ability to redistribute or transfer that copy, the purchaser is considered a licensee, not an owner, of the software."
In the Wall Data case, the Sherrif's Dept. imaged Wall Data's software onto more systems than they had licenses for, and then used some management software to prevent more than the licensed number of copies from being used at once, despite the software's EULA having a specific provision that licenses could only be transferred every 30 days.
MDY vs. Blizzard interprets this as a "two-part test", which seems a little rich considering that the bit about "significant restrictions on the purchaser's ability to redistribute" only makes sense because the Wall Data case hinged on the EULA restriction on transferring of licenses. But at any rate, MDY vs. Blizzard also doesn't impose much of a standard for whether "the copyright owner makes it clear that she or he is granting only a license": they decide that since a EULA existed that itself said that "all copies of" the software, then the EULA must apply, and so the software is clearly licensed. (Whether or not the EULA was located in a filing cabinet in a disused lavatory with a sign on the door saying "Beware of the Leopard" was not discussed. =) ) But certainly if whoever installed the software had to click through agreeing to the license as part of the installation process, any court would find that it was clear to that person who did the install that the software is licensed, and that would probably meet this clarity standard.
It's not clear to me, that the Ninth Circuit has any idea what the remaining point would be of s. 117 under this interpretation, but at any rate... =)
So, as long as enough people were licensed copies of Blizzard's software and not sold them, and enough people who used MDY's software for its primary intended purpose would have broken their licenses by doing so, then MDY gets stuck with indirect infringement of some kind (for instance, contributory infringement).
I suggest you RTFA. Pamela at Groklaw knows far more than you imagine you do.
..in the finest of slashdot traditions "It's Apple's OS, they developed it, spend years and millions of $$$ making it - why shouldn't they be allowed to say what machines can and can't run it?"
Because it's complete bullshit, that's why.
Here's the /. traditional analogy, so you can see how stupid it is. Right now today there's a huge enthusiast aftermarket industry and hobby developing electric vehicles from existing gas engine vehicles. Conversions. Because it's cool and a lot of folks want them. You can get kits and plans, or entire turnkey built vehicles, based off of ford rangers or chevy s-10s for example, those are common.
What apple is doing would be the same as if ford or chevy "didn't allow" unauthorized use of their "product" by modifying it to be something the end user customer really wanted, but that the original OEM doesn't provide. So, Ford and Chevy should be allowed to dictate that? After all, thousands of man hours of research and development and expensive manufacturing costs and so on, all went into their product. Well, the car companies freaking tried years and years ago to make it that way, they didn't even want to have after market replacement parts "allowed" because it "violated their precious". They wanted you locked into factory dealer prices for parts and labor. The courts said that was bullshit (in legalese of course, too bad they can't just speak plainly) shot them down on that, but for some reason so far the courts seem to think software is just so darn special it needs it's own "class", copyrights AND patents with the added bonus of NO WARRANTIES required, then you get the EULA treatment on top of that.
I think that's pure bullshit as well. It's "legal", but still bullshit.
OK, another one, how about some novel, with a full copyright, the author spends all this time in "development work", sitting in front of a keyboard, (sound familiar?) then the publisher has to "manufacture copies" for the end users, so then, they decide to force you to agree to some "End User Reading License". Only YOU may read that book, you may not lend it to another person because only YOUR eyeballs are "licensed to read it and make a copy in memory". The only "authorized copy" in anyone's brain "allowed" by the agreement is the first purchaser, if he was to lend it, OMG, the second person would then have an unauthorized brain copy in memory that he didn't pay for nor was allowed to make.
So what say you, the above examples should be legal as well, end user vehicle modding not allowed, end user reading and sharing the copy not allowed? Or would that be bullshit. I vote bullshit.
The law may technically be on apple's side right now, but that still doesn't make it right, it's bullshit.
There's been any number of "laws on the books" that were complete bullshit, and sometimes they stick there way past when they should be changed. In that case, only mass adoption of saying "Fuck you, jerks, that's bullshit!" works. This usually involves "interesting times", but such is human history made of, sport!
Now alcohol prohibition was on the books way before my time, and it only got changed when enough of the population just went "this is just bullshit" and drank anyway. Smoking the naughty naughty is that way today. Proly get changed..eventually,because the law is bullshit.
Now later on, when I was a younger dude, we had still a lot of civil rights issues to get sorted out, in one instance the "law" was taking its sweet time since the emancipation was a century previous. So, what happened is enough people got together and went "fuck you, that's bullshit!" and defied their "laws", me included. "Illegal"? Sure it was..sort of. Technically it wasn't, but technically it was..it was a clusterfuck because of conflicting "laws". You'd go someplace and blah blah "wasn't allowed", there were "restrictions" on some people that didn't apply to others. It was "on the books" though. Except over here it wa
Okay, but ultimately it's their privilege as the copyright owner to not make the software available to you unless you sign a contract not to do any of the things with the software that those exceptions would normally allow. The discussion here really boils down to what they can make you do if you haven't signed anything.
I did better than read the article, I read the legal filings, and I find Psystar's brief more persuasive based on my understanding of the law here. Others may disagree, and may have a far more detailed legal basis for their disagreement.
maybe sony's movie division can make a eula so that all the blu-ray films made by them can only be played on products from it's electronics division.
...
in that they stifle competition and take away rights from the consumer and company.
The EULA and IPs form Corporatism, a form of Fascism as it allows corporations to use the laws of a nation to take away the freedoms and rights of consumers and their competing companies. In a true Capitalistic economy there would be a free market and open competition that would allow any company to build their own Macintosh and use Mac OSX and compete with Apple and let the free market determine the asking price. But in this case Apple is using corporatism and fascism to shut out any competition as well as sue consumers who only wanted a lower price on a machine that could run Mac OSX. There is a legit purchase of Mac OSX from Apple by Psystar, and part of the EULA allows the license to be "resold" to someone else, namely the Psystar customers. Also the "Apple Logo Computer" is vague in meaning and Psystar could put a logo of an Apple (not have to be Apple Computer's Apple, but any Apple as a logo) and use a loophole as an "Apple Logo Computer" by having a logo of an Apple on it. Apple would have to change the EULA to say "Apple Computer, Inc made Computer" because this EULA is dated back to the time of the Mac Clones that used the Apple Logo to sell Mac Clone computers by Power Computing and others. So thanks to the Apple Computer Deal with Power Computing so long ago, there exists a loophole for Mac Clones to still be made as long as they have an Apple type logo on them. If I was Psystar I'd push for that legal loophole before Apple changes the EULA.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.
The article includes the legal filings, PLUS analysis by a paralegal. So actually you did worse.
Apple hardware is good for what it is, but horrible for what it isn't.
Once you start despising the jerks, you become one.
Psystar apparently ships the original DVDs to every customer, a proposition which if true should provide ample evidence for the claim that they did indeed purchase them. I read Apple's latest motion or counter-motion and didn't see any claim to the contrary.
As for the further legal perpetration of the fiction that software is licensed, rather than sold in a retail distribution chain, I guess I haven't read enough to be convinced that proposition is now received common law.
It is as I commented elsewhere, if you go to an independent auto dealer and pay them $20,000 dollars for a car, can the auto manufacturer come back and say that you have actually entered into an indefinite lease of a car (a car that in actual fact you do not own), without a signed agreement to the effect that you understand that you have entered into a lease agreement rather than a purchase agreement?
Furthermore, I don't understand why anyone would need a license to exercise their rights with respect to a physical copy of software that they own. A license is legal permission to do something otherwise unauthorized. Do people need a license to read books that they have purchased, on the theory that they own some raw material, but not an actual copy?
To me it seems like lawyers for software companies are trying to invent a tertium quid and get it recognized at common law, a sort of legal right which is not ownership, nor copyright, but which somehow remains with the copyright holder and lets them dictate what owners of copies may and may not do beyond what copyright law prohibits them from doing.
That is the sort of thing that ought to take an act of Congress, and indeed Congress already has acted with 17 USC 109:
So is a EULA (for example) based on the claim that the end user does *not* own a "particular copy" of the copyrighted work in question? The word "copy" implies identity in form and pattern. Can the user own a legitimately produced CD-ROM, without owning a "copy" of the original? Are any "copies" of software owned by anyone other than the copyright holder? -- Not according to 17 USC 109(a), otherwise it would be meaningless. Right?
Go read April's filings. They can't prove shipping the DVDs because they can't prove even buying them. Why do you think they suddenly went for a stall tactic in May with the bankruptcy and now with the Florida lawsuit ? Because when this reaches trial, their failure in April to produce any evidence of having had contact with retail DVDs will hurt them.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
Everything Apple does is fine, because I like Apple products.
Your move.
I think they've made it pretty clear that all of those things are indeed, in their eyes, illegal. They even went as far as to file a legal brief against a legal right to jailbreak that suggests that jailbreaking facilitates terrorism. Yeah, they went there.
Godwin's law really needs to be extended to terrorists/terrorism. Terrorists are the Nazis of the new millenium in terms of the public's perception of them.
The flaw in Apple's argument is that because Mac OS X can't be run from the DVD, installing it on the hard drive is a necessary part of using the software under section 117, meaning that it cannot be infringement. Therefore, the question, legally, is not whether the copy on the hard drive is unlicensed, but whether the copy on the DVD from which it was installed was unlicensed. If it was a legally licensed copy, section 117 protects the installer and the user from this sort of infringement suit. If it was not a legally licensed copy, then every Mac OS X user is in trouble.
OSX has been around for centuries? it's more advanced and mature than I thought.
Non impediti ratione cogitationus.
Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.
No, both Apple and copyright law specifically allow copies in RAM.
Falcon
Should there be a Law?
Your opinion of Apple's products is not really relevant to whether or not Apple's behavior is acceptable, ethical, or fair. I like some of the soft drinks Coca Cola makes, but guess what? Coca Cola engages in plenty of questionable, unacceptable, and completely unethical practices, and the quality of their products is in no way related to this practices. Apple's product quality is not related to whether or not they undermine hobbyists, attack hackintoshes, and try to stamp out companies like Psystar, and you can like Apple products and still agree that their legal actions against Psystar are uncalled for and unjustifiable.
Palm trees and 8
Apple already had the chance to not sell their software to those who have not made such a promise; they went ahead and sold it anyway.
The terms "legal copy" and "licensed copy" are not equivalent. Do not use them as if they are.
[the section 117 exception gives a reason the software might be allowed to be altered.]:
[...] it is not an infringement for the owner of a copy of a computer program to make [...] 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 [...]"
So if I can't agree to a EULA, am I allowed to invert the right conditional jump instruction? It's essential that I do so for me to use the software, right?
Okay, probably not. What's the right counterargument?
(I'm especially interested in counterarguments that use the law as written and no case law; why? Because I'm interested in understanding how to interpret the law as written, and I think the answer might enlighten me)
Here's one for ya.
If someone purchases a software (on CD), modifies a file, destroys the original CD, and gives someone the modified version (on CD), they have committed copyright infringment.
However, if I buy a paperback book, use an ink-pen to change the meaning of a few sentences, and then give the (modified) book to someone else, no crime has been committed.
What to make it more weird? Buy an e-book, modify the ebook file, move the file to a removable storage, and then give it to someone else. Won't lawyers scream copyright infringment by "derivative work"?
Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.
I bet you can figure out the distinction from that sole hint.
The difference would be if the EULA specifically gives Apple hardware owners the right to make that extra copy.
Psystar seems to be arguing that the owner of a copy of a program has inherent rights to load it into ram because of section 117, Apple says no, you need additional authorization you get from the EULA. If the EULA doesn't give anyone this right to a 3rd copy then you'd be correct.
No, Apple's position is that, regardless of the EULA, section 117 gives an owner inherent rights to load an unaltered copy into RAM. Psystar's position is that purchase of a license to a creative work gives a nonexclusive license to copy any derivative work, such as the one created by Psystar and which a clone-user loads into RAM. It's not the original work, but a derivative work that they're loading into RAM - therefore, it wouldn't be covered by section 117 or any implied copyright license.
If I buy a copy of OS X, then I legally possess a license to use it. Apple says I am only licensed to use it on an Apple manufactured computer, but this is bundling, which got IBM in a lot of trouble back in the mainframe heyday.
IBM said you could not buy a copy of its mainframe OS to run on anything other than an IBM mainframe, and could not even buy the software license separately from the hardware. The case went on for years, but was eventually dismissed by the Reagan Justice Department.
Since Apple sells the operating system software separately from the hardware, some lawyer somewhere is eventually going to successfully make the case that Apple is illegally bundling hardware and software...
Ask Me About... The 80's!
First sale doctrine means that Psystar already has the rights the EULA is trying to hoard for apple hardware owners.
All the First sale doctrine says is that the owner has the right to sell the software to someone else, but they either have to hand over all the copies made or they have to delete or destroy those copies. They can not leave the copy they created when they installed it on their computer on the computer.
Falcon
Should there be a Law?
Is installing drivers or programs or user files by Apple customers not 'modifying' the OS? And they boot it, doesn't it make an unauthorized copy in the RAM?
Both Apple and copyright law allow a copy in RAM. Apple also allows modification of the OS on Apple branded hardware.
Falcon
Should there be a Law?
I concur?
And get it completely wrong in the process. You're fired.
Apple doesn't say booting makes an unauthorized copy.
Apple says booting an unauthorized copy makes unauthorized copy.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
if what Apple says holds, then first sale doctrine is effectively void
No it isn't. If you buy OS X but don't have a Mac you can still sell the OS X disk. The only thing you can not do is install it on non-Apple hardware or make an unauthorized copy. Pystar is doing both.
Falcon
Should there be a Law?
The EULA has no bearing on this case. Why? Because its a END User Licensing Agreement. Psystar is NOT A END USER they are an OEM.
Its just as illegal for a PC manufacturer to pre-install a retail copy of windows. And yes MS would go after anyone that did this.
OEM licenses have many extra terms and the software is able to present the end user with the EULA.
PS is Psystar wins OEM Licensing dies,
If your the consumer and you buy a piece of software you automatically licensed for use of one copy of that software at a time. Copies made (in Memory) to enable that are part of the deal (this is covered under copyright law). If your not the consumer but a commercial interest all bets are off. Just as a MP3 player Vendor can not buy some CDs and put them on its product without a separate commercial license Psystar can not buy copies of OS X and put them on a system without a OEM agreement. Commercial copying is a very different world from personal consumer copying.
I am suggesting that it ought to be trivial to produce any number of customers who would affirm that they did indeed receive the original Mac OS X DVDs that Psystar claims they shipped, along with the DVDs themselves.
If they really have been installing and shipping illegal copies, what is the relevance of all this song and dance about first sale, section 117 rights, and DMCA? Also, why would Psystar think they have a hope of prevailing on a motion to dismiss (barring insanity of course)? Rhetorical questions of course.
I don't think the words that you are referring to mean what you think they mean.
I just spent a bunch of time figuring out how MDY vs. Blizzard would relate to the Psystar case, and then read the Aug 21 PsyStar story on Groklaw, which talks about it at length.
If you didn't see my other post, I've basically concluded that according to that case law, section 117 doesn't do anything.
Anyway, back to that Groklaw story.
It makes a point about needing to face the reality of the case law in your jurisdiction, if you want to win a case there. That's well taken; as the amicus response they quote illustrates, the judge has no choice but to follow the case law.
But as for the rest of the article, let's just say I think I have some different answers for the rhetorical questions there than the ones they were expecting.
* Warning: Some sarcasm below. YMMV. *
"No matter how you feel about proprietary EULAs, look at what Psystar did when it decided to ignore Apple's, and maybe then you can at least understand why companies want EULAs."
In this case, Apple wants EULAs for their software so that they can extract the maximum amount of money from each user of their software by making them buy Apple hardware. Presumably, you're saying that people license their software under the GPL in order to make some cash?
"Suppose you wrote code, released it under the GPL, and then someone came along and said he didn't need to abide by its terms. Would you say, OK, never mind? Or would you sue?"
If someone came along and I sold (or even just gave) them a copy of the software I wrote and then they said they didn't need to abide by the terms, and they were going to use it on their own machine and not distribute it, I would say: You are most certainly correct.
If someone came along and said they wanted to distribute the software I wrote against the terms, then I might threaten to sue, but I'd be willing to settle for them giving me any derivative source code changes, and changing their practices so that they were distributing my software under the GPL. They could instead just give me the derivative source code changes and stop distributing the software, but that would mean less distribution of the software, so I'd probably prefer the first option.
I'd love to be a fly on the wall in the meeting where Apple offers Psystar terms under which Psystar can continue distributing Apple's software.
But to be fair Apple will likely probably settle for not much more than Psystar not distributing their software.
"Actually, that happened, with SCO."
SCO distributed GPLed software, and then rounded up a bunch of documentation on their earlier proprietary doings, and marched up to IBM and said "You've got a nice user base here, colonel. We wouldn't want anything to 'appen to it." (apologies to Monty Python - http://www.youtube.com/watch?v=DRm5WcjOikQ )
If someone distributed my software under the terms of the GPL, and then went to tell my users about some of the nasty things that they didn't want to happen to me, I'd take my copy of the GPL to them, and explain to them what they should do to continue distributing my software so that they needn't worry about any nasty things. And in case they needed some extra copies of that explanation I'd also share it with Slashdot, and Groklaw, and the New York Times, etc.
When Apple tells you about the nasty things they don't want to happen to you, it could mean that you've violated the license for their software, (or that you're a blogger on an Apple site and Apple has a product launch coming up, or that the window manager theme you released is nearly as shiny as Apple's own and Apple is worried that they might be losing the shininess race, or that Apple has violated their consent decree with you for an nth time and doesn't you want to miss out on seeing the Goodyear blimp, or...) but it probably comes with a note telling you to tell everyone you know about it.
"Did the Linux community say it was fine?"
The Linux community says lots of thing
I, for one, welcome our Nebulously Undefined Right and Wrong Overlords.
Uggghhh... I feel all dirty inside now....
This is not a question of direct transfer of a copy though. Pystar modifies OS X in order to make it run on its hardware. you say this is allowable under the 'necessary step' exception. It is not. The courts have allowed modification under 'necessary step' for correcting bugs, and for ensuring a piece of software will work on upgraded systems. 17 USC 117 (b) however, prohibits the transfer of such modified copies without the authorization of the copyright owner. This is designed to preserve the copyright holder's right to produce derivative works. what pystar is doing is analogous to buying copies of a book, unbinding it, replacing the first chapter with one they wrote, rebinding it, then selling it as the original work. Apple has not authorized Pystar to transfer the modified copies of OS X, therefore 17 USC 117 is not a defense.
Come read my stupid blagablog. Rants and Giggles
Even if it were determined that Pystar infringes on Apple's rights by distributing a modified version of OSX (which still seems to me to fall under $117 a 1 as a necessary adaptation), the lack of "authorization" doesn't seem to be viral. The user would still be the owner of an, albeit unlawful, computer program and would be allowed to copy it as often as necessary to use the software.
God, you have a hard-on for turning buying into renting. Please stop shitting all over my software market.
Apple's claim is ridiculous! They claim that the copy from the mini to the master imaging system is illegal ... How many mac shops (as in companies using a lot of macs) do that? Is that illegal, why is this function available to boot off the a central OSX server available then (MS admins, think of RIS)?
BTW, this does mean I cannot back up my Macs with time machine .... damn! Can I get time machine to use the root of a drive where I installed Mac OS X from the DVD, I think not ...
The copy to ram can only be a violation if Apple can get the judge to agree that modifying the software to run with Psystar computers was illegal ...
Copy to ram isn't controlled by copyright, so that one is well off. Implicitly by the UK court law and explicitly by the US law.
And if it were to be unusable without a license, they have committed fraud by selling you something that won't work.
If they want to say "well, it's the license that is sold" then why all the scare about unlicensed copies on P2P? After all, they have no license with them so either the receiver has one and there is no problem or they receiver doesn't and they are the ones doing bad (but only if they install and use the software).
Add to that such an EULA is a contract and must be conceeded within 28 days for a full refund if the signee disagrees before that time.
You don't see that one available though, do you.
Short of it is: you don't need a license to copy to RAM, so no EULA breakage can make it illegal: copyright doesn't cover it.
This is the sort of crap PJ took SCO and MS to the coals over but if Apple does it, well, you have every right to go elsewhere (though this doesn't work for SCO or MS...)
How can it be unauthorised?
The original is there and the EULA doesn't say you can't run the program because copyright law doesn't cover the copies necessary for use.
Fiddling the executable isn't happening, the BIOS is telling the OS what it wants to hear.
And that is covered by interoperability: even DMCA doesn't say you can't fiddle with copyrighted works if it results in interoperability.
Just because Apple is doing this, you're all A-OK with it.
And it's a travesty. I discard you utterly.
Copyright is a fiat monopoly, so there you go: a monopoly on Apple.
They can forgo copyright if they like and go with straight old contract law if they like, but they want the power of contract law with the one-sided negotiation of licensing.
Bollocks to that.
PS when I buy a PC with windows on from Dell, I don't go calling Microsoft when it doesn't work. I call Dell.
Why would buying a computer from Pystar be any different? Does Pystar say explicitly "if you have problems, don't talk to us, go to Apple Support Centre"
PPS Why do you all assume the coders in Apple are all so terribly crap that they cannot make an OS that works on a wide range of hardware? It's nowhere NEAR the level of disparity in hardware that Linux has to handle and they have money to pay for NDA's etc. So why would "support" be a problem even then? Only if they are crap at writing an OS even when given most of it...
Show your evidence that the GP is incorrect or an idiot?
PJ *HAS* railed at SCO (mis)using DMCA and copyright (holding that having POSIX defines that were the same as SCO POSIX defines [by definition: it's a standard] was copyright infringemen) but when Apple misuse DMCA to hold Pystar in the wrong, it's all "you don't have to buy apple".
It's genuine.
YOU try clearing up her disconnect on the subject and you'll get banned. Try it.
No it's not. And even if it were, it's Apples priveledge as the copyright owner to allow people do do it under whatever terms they chose. i.e. only on APple computers.
It ain't rocket science.
Disregarding the debate about consumer protection laws possibly interfering with Apple's privelege to choose whatever terms they like..
What really interests me about people defending Apple with this argument (and I'm not saying it is wrong to do so) - would you use the same argument defending music/movie copyright holders same rights and legal and technological actions to claim that right?
This is not like a car analogy, for once, it is *exactly* the same.
Not quite. As I said in another post, Pystar did two things wrong. First, they did not use the normal install procedure, they used disk duplication software, so they are copying the same OS X install on all of their machines, not installing a new copy from DVD on each machine. Secondly, they are creating a derived work (hacked kernel and update mechanism). Both of these are likely to be regarded as violations of copyright law. In my expert opinion (as some guy on the Internet with no formal qualification in law), Pystar is in violation of the law as it is currently written, and the law should be changed so that this is not the case.
I am TheRaven on Soylent News
But I certainly hope that apple lose. One should not allow a software SOLD to have its usage restricted. if it does, this opens the pandora box for all sort of abuse and restriction in EULA, abuse as you have not seen up to now.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
Pay per mouth? What kind of sick, twisted payment scheme for an operating system is this?
It seems it wasn't as trivial as you tought since their answer to the court was basically "The dog ate our receipts". You could ask the same of SCO and SCO's lawyers as far as sanity goes. Sometimes, all you want to do is stall and delay and drag things for long enough to cause financial burden. Hey, if you're going to die anyway, might as well drag a few people along for the ride.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
who prays for Satan? Who in 18 centuries has had the humanity to pray for the 1 sinner that needed it most? ~Mark Twain
Apple's argument about legally licensed is based on the section of their EULA which requires OSX to installed on "Apple-branded" hardware. Technically speaking, were I to take a Mac and use a grinder to remove all apple branding from the computer, I would then be violating the license. IANAL, but it seems to me that the license is in effect forcing customers to display advertising for Apple.
I don't know if that's a valid argument, but it would be interesting to see Psystar's lawyers argue it.
who prays for Satan? Who in 18 centuries has had the humanity to pray for the 1 sinner that needed it most? ~Mark Twain
The key question that need to be answered is has anyone really been as far as decided to use even go want to do look more like? /oblig
No that is incorrect. Psystar is arguing...
First line of my post: "No, Apple's position is..."
Your post does not refute mine. They coexist in a happy world of argument.
What you say !!
Violence is the last refuge of the incompetent. Polar Scope Align for iOS
apple is very close to what lexmark tried to use to lock out 3rd pray ink.
My pary is with the parents.
has anybody really been far even as decided to use even go want to do look more like?
Browse at -1 to keep an eye out for abuses.
That is an excellent point. However, it appears to be an obstacle that Psystar could work around with a relatively simple change to their business procedures, e.g.:
1. Customer orders computer from Psystar without OS
2. Customer orders original copy of OS X from Psystar
3. Customer hires Psystar as his agent to install OS X on his behalf, making any adaptations necessary to make it run on the hardware he or she now owns.
the photons bouncing off its surface (a copy) enter your retinas whereby they trigger electro-chemical impulses (a copy) in your receptor cells
It's only a copy if it's "fixed in a tangible medium". Case law states that RAM is "a tangible medium" in which a work can be "fixed" but the human body is not.
Copyright holders have a fundamental right to dictate the license terms. When you purchase a "copy" of OS X, you are not buying the product itself but rather a license to use a "copy" of the product under a set of terms. This is no different than when you download and modify GPL'ed code. If you intend on releasing a binary from the GPL'ed code and modifications you made outside of your organization, you are obligated to release the source modifications back to the project.
We cannot pick and choose which licenses to follow and which ones to ignore. Either they are all valid or non of them are valid.
Before someone posts that they did not see the EULA before installing the software or opening the package, the EULA of OS X is posted online for anyone to view prior to making a purchase from any public terminal.
Jesus was a compassionate social conservative who called individuals to sin no more.
One court interpreting the law to mean one thing does not mean another cannot interpret it to mean something else
Unless the "one court interpreting the law" is the Supreme Court of the United States. The SCOTUS can reverse itself, as in Plessy v. Ferguson to Brown v. Topeka Board of Education, but it takes a couple generations at least.
Wikipedia's article on EULAs has a pretty good list of cases and descriptions of most of them. Personally, I'd like to see a case get up the Supreme court, where I would hope the logic from the Wyse case would prevail:
"When these form licenses were first developed for software, it was, in large part, to avoid the federal copyright law first sale doctrine" thus the intent of EULAs after 1990 were to preempt federal statutes using contract law and that they serve no purpose besides attempts to preempt consumer rights in other statutes.
However the concept of "a contract can't trump what the law says your rights are" sometimes seems to be a thing of the past.
I put on my robe and wizard hat..
This is not what is happening with Pystar. Pystar is creating a new work, modifying Apple's copyrighted code, and distributing it without their permission. To be clear, 117(a) is concerned with the making of additional copies by the owner of a copy, 117(b) is concerned with transfer of these copies. copies of copies may only be transferred with the original copy, as a part of the original owner transferring all of his ownership of that copy. Modified copies may not be transferred except with the permission of the copyright owner, in this case, Apple. On this point, Pystar's only defense is arguing that what they do to OS X isnt actually a modification, which they made in their response to motion for summary judgment. It strikes me a ludicrous to compare tinkering with the inner workings of the OS and how it boots to swapping out internet browsers. One is clearly part of the internal workings of the OS, the other is an end-user applications running on the OS. I think it likely that infringement will be found as a matter of law on summary judgement.
Come read my stupid blagablog. Rants and Giggles
First Sale Doctrine includes all hardware and software, no matter what. I paid for it, I can sell it to someone else. My 3-disc FFVII set, still in my legal possession, can be resold. Same with the Playstation console that it runs on.
If Psystar bought OSX licenses, then first sale doctrine applies. They can resell the license they LEGALLY PURCHASED. The EULA is non-binding and has been found to be non-binding quite often in other states, namely California.
You are wrong, sorry.
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
monkeys with typewriters.
However the concept of "a contract can't trump what the law says your rights are" sometimes seems to be a thing of the past.
I think you can agree not to exercise certain rights, like free speech, under certain terms and conditions - limited time, consideration, etc. Some rights I don't think a court will let you give up. You can't agree to let someone else do something illegal to you, for example.
However, a license cannot take away rights, by definition. No one needs a license to do something they already have a legal right to do. That is the reasoning behind the fiction that end users do not own "copies" of the software they pay good money for, up front, for an unlimited term. I am optimistic this strange concept will be overturned in good time, perhaps even by the Ninth Circuit, upholding the district courts decisions in Vernor and Augusto in pending appeals.
If the latter two cases aren't mentioned in Wikipedia yet, someone should add them. Maybe me.
I vote for worst use of the English language ever?
Is that a question or a statement.
Stop! Dremel time!
I don't know, do you?
I'm Ron Burgundy?
Build a man a fire, he's warm for one night. Set him on fire, and he's warm for the rest of his life.
No, the BSD allows me to open or close my source code, that is control. It also allows me to sale a binary code for installation on 1 computer. That is control.
Falcon
Should there be a Law?
No one is stopping you from selling it on. And no one is stopping Psystar from selling copies of OSX on. It's when they install it on their systems, or ship modifies versions of OSX that they are breaching copyright.
Steve Jobs is such a control freak, he never understood that Apple could be where Microsoft is, all it had to do was become a company that focused on the software, rather than a hardware company.
/. would be up in arms, but since it is Apple placing demands on how software is used, /. bows in worship. How pathetic, we talk of freedom and hacking, but we do not practice or support what we preach.
Apple should be working to allow OS X to run on various computers, for example DELL was interested in selling OS X computers for the longest time. I know people who run versions of OS X on their thinkpads. Instead Apple is sniping people who buy and sell Apple products (just not in the way, Lord Jobs approves). If it were a record or movie company putting demands on how a song or movie can be used,
Apple could have made a strong push years back against Windows, but by locking the hardware and software together and taking the role of hardware provider instead of software distributor, they will be left in their 3-5% nitch forever. I think it would have been really cool, but Jobs is to concerned with controlling a closed and walled off garden then building a public park where other hardware and software folks could play along side him. Where are all the Apple hackers? Why aren't they upset over the walls Jobs has constructed? Because they just write him off and switch to Linux or Windows (both of which are more open).
This corporate policy is why eventually the iPhone will fall just as the Apple desktop did. Remember when people who were interested in Apple went with PCs because that critical piece of software/hardware they needed wasn't support or available through Apple and Apple made it hard for the software/hardware folks to develop products to work with Apple (the II was a success because of the expansion slots that Jobs killed in the early Macs).
Few remember that it was Windows who was open to more hardware and application developers, thus crushing Apple's desktop market chances, so to will Android be open to more hardware and application developers eventually crushing Apple's PDA/smartphone position. Despite the big head start, Apple's closed approach will choke it off eventually, costing Apple the top seed, not to a single hardware victor, but to a variety of venders with a uniform OS/development standard, in this case Android and its open APIs.
Just like the Appple II orginally had more apps, before PCs caught on, so will Android catchup and pass the iPhone (except it will be much faster). How is that wifi tether app on your iPhone working? Are you really with the wireless carrier you wanted? Can you develop iPhone apps on your Linux or Windows PCs? Where is model with a keyboard? Where is the one with an sd expansion slot? The one that can run background programs/services?
Respect the Constitution
But.. but.. but..
I bought a copy of OS X from Apple! Sure, I read the EULA. To quote that EULA
"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."
(I looked further at the EULA, and "Apple-labeled computer" is not further defined)
Now, Apple provides stick-on labels WITH THE SOFTWARE! (interestingly, more than one -- are they encouraging piracy?) I interpret "Apple-labeled computer" as one that has the "Apple label"; in other words, one that has the sticker on it. So, I stuck one of those on a hack-in-tosh, and went to town.
Honestly, what is this suite about? Is Pystar not putting the label sticker on?
Just another "Cubible(sic) Joe" 2 17 3061
" ... Psystar's response: 'Copying a computer program into RAM as a result of installing and running that program is precisely the copying that Section 117 provides does not constitute copyright infringement for an owner of a computer program. As the Ninth Circuit explained, permitting copies like this was Section 117's purpose.' ..."
I'm sure Apple's lawyers have a reason for the claim, but you probably would have to actually BE a lawyer to be familiar enough with the Section 117 and relevant case law to know why the claim was included.
I did see something in Psystar's response, though ... at " does not constitute copyright infringement for an owner of a computer program".
Is it possible Apple's claim centers around Psystar not being the owner (ie the customer, presumably is the owner) or that other unauthorized use claims negate the protection offered the owner, since the upheld claims would make Psystar's ownership invalid? Does Psystar play any legal games regarding who installs what and on whose behalf? If so, could that come back and bite them with this particular claim by Apple?
Is the actual Section 117 language different than Psystar's response (it would not be the first time language in a lawsuit was cleverly phrased to suit the spokesman's client)? Does 117 say things like "authorized user", etc where Psystar says "owner"? Apple's claim may be dependent on other claims making Psystar's use unauthorized or deeming Psystar is not the "owner" under the meaning of 117.
I'm not a lawyer. Real lawyers welcome to chime in, as well as anyone familiar with 117 itself.
I think you'll be waiting quite a while. Google Blizzard vs Glider for a taste of what the courts have to say about EULA's. You might also want to pop over here for more information about the Psystar/Apple battle.
The GPL does not prevent you from closing the code at a later date, as long as you don't accept contributions licensed under the GPL.
Like the BSD license the GPL only allows you close your own code. You admit it when you say if you contribute code to MySQL you have to sign your rights to MySQL AB, now Oracle.
With BSD I don't have to do that. With a background in computers I want to start a business in photography. Among the things I want to do is setup an online store where I sell photographs as well as use the3 website as my portfolio. Photographers can buy packages and software, individual apps as well as turnkey systems however they are expensive. So what I've been thinking of doing is building my own system, from a database to the online store with shopping cart. What I'm thinking is that if I spend much tyme developing the system I'd like to be able to sell it, or pieces of it, to other photographers. If I use the GPL I can not prevent others from copying the software and giving it away. On the other hand if I use the BSD I can sell the binary code and take steps to try to prevent others from distributing my software. If I wanted to run a software business I could just sale services and support, in which case the GPL would work, but I don't.
Falcon
Should there be a Law?
First sale doctrine is a doctrine. That is, it is "that which is taught; what is held, put forth as true, and supported by a teacher, a school, or a sect; a principle or position, or the body of principles, in any branch of knowledge". Its origin derives not from a mandate from Congress but a recognition of the inherent properties of a copy of a copyrighted work. As you state, it fleshes out that "the copyright owner relinquishes all futher rights to sell or otherwise dispose of that copy".
No I think you do. I never argued otherwise. In fact I repeatedly stated the First sale doctrine allows the owner of a copy to transfer ownership of the copy to someone else. Pystar is not doing that though, Pystar is installing OS X on it's own hardware, against the Apple license. Pystar is also modifying OS X so it can be installed on non-Apple branded hardware.
Now I wouldn't have the problem I have with Pystar if they did not install OS X on their hardware. If they only sold a computer with their own software and either a paid for OS X DVD, which someone above previously said they could not provide a receipt for, or told buyers they would have to buy their own DVD. I may not like it but I can only see the DMCA, which I'd remove from the laws books, as a way to prevent or try to prevent them from doing so.
As much as I'd like Apple to license OS X to clone makers, Apple already tried that and lost money, I do not own Apple stock and have no say in how the business is run as long as they stay within the law. And so far no court said the business was not operating within the law.
Falcon
Should there be a Law?
If they're modifying OSX then they're screwed.
Still though there's a potential for a bad precedent to be set here. Depending on HOW psystar loses things could go anywhere from blah to downright ugly here.
So, what happens if Psystar and their end users decline the EULA?
Then they lack the right under Title 17, United States Code, section 1201, to decrypt the installer. This law in the United States, home of Apple and Psystar, bans decryption of a copyrighted work without the copyright owner's permission. It is possible to be found guilty or liable of this even if your actions do not infringe the copyright.
Two other district courts in the Ninth Circuit have recently ruled the other way. That is the basis for my optimism. Check this out:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
See him then, see him now - Steve Jobs: Good artists copy, great artists steal . The Apple building flying the pirate flag. Sounds like Jobs, and much of Apple, was against patents and copyrights when he needed ideas, inspiration, creations, works. If you have any doubts, see "pirates of silicon valley". They all stole lots of stuff. Even in open source there are lots of "stolen" concepts, if not code. So far all is good. Enter The Law, rewarding/financing system, and social mores, in their current state, and let the problems begin... we need new ones.
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