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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?"
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.
Apple is being paid for every copy of OS X. Perhaps they should stop selling OS X as a full standalone product then? 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.
When everyone else tries to lock stuff down we scream about how evil and greedy they are. But when it comes to Apple, it's different somehow? Apple is just as greedy and as "evil" as Microsoft. They're out to make money just like everyone else.
If that was the ruling, then the law, or its interpretation are quite wrong. Just because it's the law doesn't make it right.
Yes, but Apple is making their argument in a court of Law, not a court of Nebulously Undefined Rights and Wrongs.
The current law is the current law, and Apple is legally correct. If you believe that the current law is not optimal, that's a matter to take up with the legislature. Arguing that the lawyers and courts are wrong for following the law is downright silly.
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.
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.
I'd rephrase that to say Apple has an effective case... because I certainly wouldn't call what they're doing "good".
Depends if you have a licence to run the OS in question.
" To steal ideas from one person is plagiarism; to steal from many is research. "
Pystar isn't wrong, just illegal.
This is my sig.
As I recall, the Glider decision actual is more disturbing. Essentially, they sidestepped section 117 altogether and basically said that the RAM copy is a full blown copy, and is only made legally because the ELUA allows such use. As Glider violated the EULA, making a RAM copy of WoW infringed on Blizzard's copyright.
So not only is making a RAM copy infringement (without a license) ELUA's are also implicitly upheld. Lovely.
On somewhat unrelated, but interesting note: Now that SSDs (and, potentially PRAM) are picking of speed, it may well be possible to to run programs directly off the HD. This would completely sidestep all this 'copying to RAM is infringement' BS
No surprise, which is why you can search my house:0 NO Apple/Mac, no iDevices, not today, not ever. Not even welcome on the property (a recent guest was surprised but accepted my position).
So to summarize - because of Apple's heavy-handed behavior, you will not associate with anyone who does not allow you to force your beliefs on them.
There's some irony in there, somewhere. But on the bright side, I'm guessing this doesn't affect a significant number of people at all.
#DeleteChrome
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 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.
No, apple is. Since their attorneys represent apple, they are apple in a court of law.
The question of whether a computer can think is no more interesting than the question of whether a submarine can swim.
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.
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".
Peak Computer, Inc. had a business repairing MAI's Basic/4 computers and MAI got pissy about the "lost" service revenue.
http://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc.
It was that case that made it illegal to load copyrighted software into RAM without a license.
Before that, the legality was unclear and there were many heavy-handed lawsuits brought by manufacturers (including MAI) against 3rd party service companies.
Long after it mattered to either of them the court decided that it was ok to boot the system in order to repair it. Peak was never depriving MAI of any software sales, they were preventing MAI from using their software licenses to lock customers into their service contracts.
Similarly, Psystar isn't depriving Apple of any software sales but the are preventing Apple from using their software licenses to lock customers into their own brand of hardware.
Fuck Apple.
Personally I'm rooting for Apple on this one. It's their business model, and it has benefits for their users.
Don't do that. You are rooting for someone to win not based on the merits of their arguments, but because you like them and think the other side are jerks. That's very dangerous.
Sherwin Williams doesn't tell me that I can't use exterior house paint on interior walls. They might recommend otherwise, but I can do what I want with their paint - I paid for it.
Prescription drug makers love it when something like Botox, which was originally developed as a treatment for crossed eyes, is used for "off-label" applications. Now, airline tickets are another matter, but it's not really good marketing to justify your shitty business practices because airlines get away with something similar...
Granted, if I use these products in a manner inconsistent with their labeling, I assume the risk of doing so.
I couldn't give two fucks about the BSA or your Adobe example (I seriously doubt BSA is going to sue one individual for upgrading a pirated serial, but this has nothing to do with the discussion at hand).
In my theoretical case, I paid for OS X and I can damn well use it how I please. Apple got their money. If they don't want us using OS X on third party hardware, maybe they should stop selling upgrades, embed the OS in ROM and only sell updated OS software with new machines - they'd love that.
If I am Apple and some whiner calls complaining that their Dell Mini 9 got bricked by a software update, it's tough luck, Charlie. It's funny though that Dell support will tell you how to install OS X on your Dell Mini 9, and I don't see the BSA going after them.
Isn't it also funny how Dell has made sure that certain models of their laptops are plug compatible with Macs, which allows you to install OS X onto them without hacking them first...
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