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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.
"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.
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.
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.
Doesn't Apple just sell upgrade licenses at retail?
At least that's how i understood it. And the other licenses are locked to the hardware - just like Microsoft's OEM licenses.
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.
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.
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])
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.
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. "
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)
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
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.
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.
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?
I've always been a PC at heart.
Not like the rest, the others. Everyone around me. I was at odds with my society and knew it early since birth. Unlike them, I did not "Think Different!"--the mantra of the Macs around me, the phrase on all the billboards in the city that served as a reminder to its citizenry. Sameness pervaded the essence of my being and no amount of self-conditioning I did could change that. Eventually, I gave up and isolated myself emotionally from society.
I gaze at the faces going by, the white earphones contrasting their black turtlenecks, connecting their ears to their pockets, their blank faces engrossed in hip Indie rock music and various garage bands. I envied them for their perfection against my flaws and my compulsive nature to expand, to burden my life with troubles instead of remaining, like them, simple and easy to deal with. The grandest of virtues, simplicity... the philosophy by our loyal benefactor Steve Jobs, who descended from the heavens, creating the Earth, the iron, the wind and the rain. Steve Jobs, who defined the parameters of existence, the one who set about the patterns of reality, the constants, the variables. He who made gravity, electromagnetic energy, and shaped atomic structures and brought forth motion. From these things, he crafted the elements, processed them, refined them, and from these things engineered Apple products through the purity of his mind. Each Apple product was individually crafted by his own hands with the programming code used to run each device having being compiled in his brain and uploaded to each device telepathically, breathing life and perfection into each and every unit.
Except, it seems, for me, for I was not among the many. I was a PC. They were Macs. I've always been a cold, stiff person. I got by, disguising myself by keeping my non-Ipod music player safely out of sight, which I use because of my depraved nature demanding more functionality than the simple and easy-to-use Ipods have to offer.. In the safety of my own home, behind locked doors, I ran a Forbidden, a contraband computer from more depraved, earlier days that was not given the love and blessing of being birthed by Steve Jobs. I dual booted, out of the great sin of curiosity-- curiosity, a shameful value of a PC, as curiosity has no place where simplicity matters most--using two of the great unutterable blasphemies-- something called "Windows Vista" and something else called "Linux." Although, as I mentioned before, although my tendency to be a PC and towards conformity has always been inherent to me, I was truly transformed when I found these old things in a hidden cache of computer parts predating The Purging. Perhaps the greatest sin of all, the single evil that, if discovered, would damn me forever, was the fact that my mouse had more than one button.
As I walk among the Macs on the streets, passing the Starbuckses as I went along, I wondered how it all came to this. I glanced at The Holy Marks on the foreheads as the people wandered down the streets, the Bitten Apple tattooed on all our of us at birth, and wondered if, perhaps, there could be something more to life. But again, this was a PC's thought, and not, like everyone elses', a Mac's. We were to hold ourselves to the philosophy of Steve Jobs--so as his products were designed for idiots, so too were we to be idiots. But I was not a Mac--I was not an idiot. I was simply too complicated to be a worthwhile person.
Nature called. I found a nearby public iPoo--squeaky clean and sparkly white, things weren't all bad--and let myself go, expelling the waste that had accumulated inside me. After relieving myself and committing the overly-complicated and thus illegal act of wiping my ass (I did not flush as iPoos, designed to be idiot-proof, did not flush) I left and once again wandered the streets aimlessly, hoping to find some meaning in a world where I simply did not belong, a world where if my true nature was discovered, I would be endlessly persecuted by smug, self-righteous sons of bitches.
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".
That is not a flawed assumption. You CLEARLY stated that you think once something is sold you should be able to do ANYTHING with it. If this means copy and redistribute those copies then that is fine right? Or are you taking back your prior statements and saying that there should be some regulations on what it means to sell something. You are now clearly contradicting your own moral assertions because you are saying that there are conditions to the sale i.e. You can't do certain things with the product once you buy it (such as copy and redistribute the copies).
I don't care if I lose karma over this; get the fuck off your high horse. Current copyright is not perfect, but the idea that people should have no control over their creative works because it is "immoral" to place stipulations on the sale of something is the dumbest thing I have ever heard. Stipulations on the sale of something is the basis of our modern society.
You are advocating anarchy through your 'morals'.
Normally I respect ones 'morals' but I think you have clearly demonstrated you are a self interested individual. You only care how this affects you and have no considerations to who else if affected by your ideas of right and wrong. You want to just go out and buy shit and have control over it with no thought of the work the creators put into making it. The reasons for wanting something to be sold with conditions is not to screw over the buyer. In fact most of the time it facilitates the buyer into being able to buy (and then get to use) something that would otherwise be too expensive. By reducing the level of control over said purchased item, or by stripping 'unnecessary' qualities from it, the product or service can be sold at a reduced price. The perfect example of this is a DVD. If there were no stipulations a DVD would probably cost in the thousands or higher because anyone could copy, screen, and otherwise profiteer by the purchase of the item. By imposing limitations the price can be reduced to a more reasonable level because the product is sold for a certain purpose. In the case of a DVD; private viewing with friends and family. Without this condition DVDs could not exist because the makers of the movie would not get compensated for their time and effort but someone else would. I really hope I don't need to go into a whole economics lecture here to explain why people need money to do things.
You can argue that morals are held by individuals, but all morals are the product of socialization one way or another. Socialization is the product of a society. Society is very closely involved with shaping the morals of the individual. All you need to do to prove this is compare America to say Iran. The vastly different morals are not due statistical anomalies or rational choices in individual persons. It is due to society socializing its members. Morality is inherently based on a set of generally accepted beliefs that a society has. In some societies it is immoral to do things that are perfectly normal in other societies. Laws are generated off of morals that the general society feels so strongly about that they are willing to FORCE that moral on anyone who is wishing to live within the societal structure. i.e. If you feel like parking in a handicapped spot you will get a ticket. There is nothing inherently wrong with parking in a spot arbitrarily marked as special, yet as a society the general moral belief is that those spots should be reserved for certain people who need them more. If this was not a general moral belief of the society.. it would not exist.
So while you can blab on about what you think is correct, morals are not just opinions.
http://en.wikipedia.org/wiki/Morality
Only in the most abstract sense of morality do you end up in the zone where morality is just an opinion. The generally accepted definition requires some sort of semi-logical justification of the view you take.
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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