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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.
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.
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.
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.
But why should users need Apple's permission to install OSX on any computer they want?
Because when you "buy" software you aren't actually buying the software. You're buying into a licensing contract. That contract can limit you in any way that doesn't break any laws. It can limit what hardware it's used on.
People may not like, but Apple isn't a monopoly. They can choose something with different licensing terms (or no license at all) if that's their preference.
Developers: We can use your help.
I don't think Apple has a right to say what piece of hardware you can run OS X on. It's paid for, end of story.
They may not have a right (morally, that is), but, since the EULA states what you can run OS X on, they would seem to have a legal right.
Not everyone lives in USA. Different places have different laws. Where I am, that EULA as no validity. You can't impose a contract to use your product after I bought it. You have to make me accept that contract before I buy it. So it looks like eveybody in Quebec can go buy OS X and run it on anything they seem fit, even a toaster if they can make it work.
Avoid the MS tax, always buy I.B.M. PC's (I Built-it Myself)
Maybe your confusion is due to the fact that you think the GPL zealot crowd actually cares about copyright. What we care about is freedom. In the GPL's case, it is guaranteeing everyone the freedom to take a program and modify it however they desire. In this case, the concern is about the freedom to use software one has purchased however one desires. As far as I know, this has not been settled by court as copyright infringement. Incidentally, you don't have to support everything about copyright or detest it completely. You can see good and bad implications and places where there is room for improvement. Its perfectly reasonable for me to want to see GPL content covered by copyright and not desire that 40-year old books also be covered.
The first sale doctrine and that they offer the OS separately via both their web site and retail stores; their right to dictate how you use their product ends the moment the deal is done. It's not a work for hire so only copyright law applies.
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
Things to google:
"First Sale Doctrine"
"Rights of the owner of a purchased item to control its disposition."
If I were, for some reason, to *PURCHASE* a copy of OSX, then there is no 'contract'. I do not agree to any EULA's or shrinkwrap licenses.
I can do FUCK ALL WHATEVER THE HELL I want with that individual copy, as long as I don't distribute copies of it to other people. I *CAN* make a personal copy for backup purposes. I can use the disc as a coaster or I can use its contents as an entropy source for a random number generator. I can use it as a bookmark while reading War and Peace, or I can nail it to the wall to use as a mirror. And I sure as hell can run it on whatever hardware I choose that I can manage to get it to run on, including but not limited to my toaster, my microwave oven or my fax machine, or any computer I purchase from anywhere made by anyone.
Again, this is assuming that the party in question has purchased a copy of OSX. If they received it via some manner of distribution that violated copyright, then that is an entirely different matter.
I also *CAN* sell that copy to another individual (providing I do not retain any backup copies) for any price that I am willing to accept and the other individual is willing to pay.
Unless Apple has a contract signed by Psystar where they agreed to such terms, then Psystar is not a party to any such contract. Further, if they exchanged cash (or cash-equivalent, eg check, electronic payment, etc) for a physical item such as a disc, then they did in fact *buy* a copy of a program, and they are in fact owners of it.
First sale doctrine means that Psystar already has the rights the EULA is trying to hoard for apple hardware owners.
True, but UCC Article 2 section 401 has something to say on the matter, specifically that title to the goods passes to the buyer at the time of delivery by the seller unless there's an explicit agreement otherwise. And that agreement has to be in place before delivery, otherwise title's already passed and the buyer can simply refuse the new agreement and retain title. And you'll note that in most software sales there is no explicit agreement entered into before the clerk hands you your package. There's only an implicit agreement requested by Apple, with no attempt to make the terms known to the buyer beforehand, no attempt to get the buyer's explicit acceptance of the agreement and no attempt to refuse to proceed with the sale until the buyer agrees. So the buyer is the owner of the goods after the sale, he holds title to them.
Apple may claim the sale is conditional, but they don't attempt to make it so. They only presume acceptance of their requested terms, and that runs afoul of 2-401's use of that little word "explicit". Which, if you look at the legal history of UCC Article 2, is exactly what it intends. One common abuse by merchants was the inclusion of implicit or hidden terms the buyer wasn't aware of at the time of sale, and 2-401 was written in response. It's commonly called the "quacks like a duck" clause: if it looks like a sale, and it sounds like a sale, then it is a sale as commonly understood and if the merchant wishes otherwise it's up to them to make that clear to the buyer and get them to agree to it.
Of course an obvious response is that the merchant isn't Apple and doesn't have power to transfer title. To which the response is UCC Article 2 section 403 which says that if Apple entrusts it's software to a merchant to sell it automatically gives the merchant all the power to transfer title that Apple would have had. It was again written to counter exactly that sort of claim, allowing consumers to deal with sales exactly as they see them without having to worry about the behavior or desires of a party they're not dealing directly with (ie. when you buy a car from your local Ford dealer you don't have to worry about Ford coming back and saying "No, this was only a lease and not a sale.").
Execute in Place ( XIP ) from flash is very common on low-end embedded hardware, especially with System-On-Chip machines having internal flash on chip. Most ARM7 ( not to be confused with ARMv7 ) systems out there probably do this. And that is a very very big segment of CPU market.
http://validator.w3.org/check?uri=http%3A%2F%2Fwww.slashdot.org Errors found while checking this document as HTML5!
From the (limited) cases I've had involving AppleCare, they'll support what they sold you. That's it. Anything you add is fine... But unless you bought it from Apple directly, that's all they'll cover.
If you get a new video card, and install it yourself and you get no picture, you'll need to remove the card and try again before they'll step in. Which is okay for those of us who'd be adding hardware anyway.
The main difference is that the GPL actually has the clause in it that says you don't need to agree to the GPL in order to use the software. Just about every closed source app has a clause that says you MUST agree to the license before you can use the software.
You're assuming they know that the person who purchased OS X is running it on a valid piece of Mac hardware. That is where it would get ugly. These OSX86's look like standard hardware when you profile them in System Profile. Apple could waste a lot of time and resources troubleshooting 3rd party hardware without even knowing they were troubleshooting a hackintosh. Especially if they don't inventory all of the hardware, or the hardware matches an actual Mac for the key components.
One the first thing an Apple employee registers is: The Serial-number. All serial-numbers are matched with a database that tells the employee what macintosh is on the other side with the customer. Psystar can't circumvent that.
All those moments will be lost in time, like tears in rain. Time to die.
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.
If you have to break the law for your brand to have strength, maybe it doesn't deserve to be strong. Do you really want the law to support companies deciding what BRAND of hardware you use in conjunction with their software?