violating Apple's copyrights and IP by making derivatives of OSX
As long as you do not redistribute the result, making an adaptation of an operating system that you have legitimately acquired a copy of as an "essential step" in the use of it on "a machine" is not a violation of Apple's copyrights let alone some other amorphous "IP".
I guess it's because those companies don't have those provisions in their license agreements
1. It is not settled law (to put it mildly) that the acceptance of a EULA is necessary to use a copy of software that you own. See here.
2. There is explicit federal law with regard to the right of a owner of a copy of a software program to modify that work as necessary to make it work on "a machine", provided that they do redistribute that modification. See 17 USC 1179(a).
The idea that only the federal government has the power to regulate interstate commerce is derived from the Commerce Clause of the U.S. Constitution, in Article I, Section 8. As interpreted by the Supreme Court in Gibbons v. Ogden (1824).
Part (a) requires permission from the *owner* of a copy. Part (b) prevents the owner from transferring the modified copy without the copyright owner's permission. Part (b) permission is not required, if the end user owns the copy and the computer prior to the installation, no matter who the installation is done by, provided the end user authorizes it to be done.
Psystar couldn't transfer ownership of the modified copy to the end user without Apple's permission.
Right. However, they do not have to ship the computer to the user for ownership to transfer. All they need to do is complete the sale (e.g. have the customer pay them) before being authorized, by the end user, to install the software the user now owns on the computer the user now owns. The latter is what 117(a) explicitly permits.
That limerick is completely misleading of course. No one is stealing Mac OS X. That kext does not prevent anyone from doing so. Its only purpose is to make it difficult to run Mac OS X on non-Apple hardware. Running Mac OS X on non-Apple hardware is not against the law and it is not stealing. Provided that it is legitimately acquired of course.
Yes. That is one way to do it, perhaps the safest way. With a first boot CD, they probably wouldn't need authorization from the user though, because the user would be running the adaptation software, not Psystar.
My suggestion is that Psystar could do this on behalf of the user before the computer ships, with appropriate authorization from the user, if the installation is done *after* the transfer of ownership is made. No stockpiling of modified computers allowed. They cannot sell the derivative work, but they could sell the service of installing Mac OS X once the end user has purchased both the software and the computer.
Providing such a service after the sale probably wouldn't be as efficient as just having the user use a first boot CD though. Another big advantage of the latter is the ability for the user to redo the installation if the hard drive fails, etc. So I like your idea better.
It is very simple. Psystar sells machine, and legitimately acquired copy of Mac OS X to end user. End user authorizes Psystar to install the copy they now own on the computer they now own, as provided for in 17 USC 117(a).
That way Psystar never sells a derivative work at all, rather they simply sell the service of installing legitimate, end user owned copies of Mac OS X on Psystar branded computers. That is what 17 USC 117(a) specifically allows.
My apologies. There is a way around the problem though: Sell the machine and the software to the user first, then have them authorize you to install it with the necessary adaptations.
All that is necessary is for the end user to authorize Psystar to do it for them. The user has to own the computer and a legitimate copy of the software first, of course. 17 USC 117(a).
if I (for example) take a copy of say, Lord of the Rings, and photocopy/re-bind it with a different cover,... I am all good and its totally fair to the official publisher[?]
As long as you never lend out the original while you are reading the photocopy or vice versa, or transfer ownership of the photocopy, or transfer the original without destroying the photocopy, absolutely. That sort of thing qualifies under fair use. In the case of computer software that exemption is explicit: See 17 USC 117.
There were a lot of problems with what Psystar was doing, but violating the EULA wasn't necessarily one of them. That assumes that a EULA is a legally binding, non-gratuitous license to use a work that the user does not own. Several courts disagree.
No one except Apple can legally be in the business of selling unlocked iPhones. But someone could presumably legally be in the business of unlocking iPhones owned by someone else, if authorized by the owner of the phone, of course - See 17 USC 117(a).
Psystar could easily avoid the 117(b) restriction by transferring ownership of the copy to the end user, and then have the end user authorize the copy and adaptation allowed by 117(a) to make the end user owned software work on the end user owned machine.
The way they Psystar has been doing business, yes. But Psystar can legally make an such adaptations once ownership of the copy has been transferred to the end user, if the end user authorizes them to do so, as an "essential step" in utilizing the software on a machine. 17 USC 117(a)(1).
Imaging stations are probably out the window, metaphysical equivalence aside. Suppose you have an imaging station with a legitimate copy of Mac OS X on it. With the user's authorization, can you "copy" that exact same version from the DVD they now own, onto the imaging station, without performing an actual copy? Or do bits need to hit the wire somewhere?
"Adaptations so prepared may be transferred only with the authorization of the copyright owner."
Good point. In that case, Psystar needs to do something like the following: Sell a machine and a legitimate copy of Mac OS X to the end user. Have the end user authorize the installation of *that* copy on the machine, with any appropriate adaptations to make it work.
117(a) allows the owner to "authorize" the making of such adaptations necessary to the software on a machine, and 117(b) does not prohibit it.
I am not sure that Psystar needs authorization from the end user to do what they did.
Section 117 provides for exceptions to all the exclusive rights in section 106 under conditions of ownership and essentiality.
Psystar *is* the initial owner of the copy. At that point, they can prepare a copy and adaptation as an essential step in the utilization of the computer program in conjunction with "a machine", and then they resell that machine in conjunction with the original copy.
There are limitations on the Section 106 exclusive rights in subsequent sections, notably Section 117:
117. Limitation on exclusive rights: computer programs (a)
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:
(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
This exception was not properly raised, and the court didn't bother to consider it, contributing to the widespread ignorance of this issue, unfortunately.
Section 117(a)(1) provides for just such an exception, provided the modification is "an essential step in the utilization of the computer program in conjunction with a machine". This is definitely the case here.
There is a legal exception to the restriction on creation of copies and derivative works, in 17 USC 117a:
117. Limitation on exclusive rights: computer programs
(a) 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:
(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
This issue was apparently not properly raised by Psystar. Nonetheless, this section strictly authorizes the creation of copies and derivative works if it is: "an essential step in the utilization of the computer program in conjunction with a machine".
If anything the court's reasoning seems awfully sloppy (nonexistent?) on this point with regard to both copies and derivative works, although I suppose it is not the court's job to make Psystar's case for it.
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violating Apple's copyrights and IP by making derivatives of OSX
As long as you do not redistribute the result, making an adaptation of an operating system that you have legitimately acquired a copy of as an "essential step" in the use of it on "a machine" is not a violation of Apple's copyrights let alone some other amorphous "IP".
See 17 USC 117(a).
I guess it's because those companies don't have those provisions in their license agreements
1. It is not settled law (to put it mildly) that the acceptance of a EULA is necessary to use a copy of software that you own. See here.
2. There is explicit federal law with regard to the right of a owner of a copy of a software program to modify that work as necessary to make it work on "a machine", provided that they do redistribute that modification. See 17 USC 1179(a).
The idea that only the federal government has the power to regulate interstate commerce is derived from the Commerce Clause of the U.S. Constitution, in Article I, Section 8. As interpreted by the Supreme Court in Gibbons v. Ogden (1824).
Fortunately, stupidity that is made up by the courts can be corrected by the courts. See here.
Part (a) requires permission from the *owner* of a copy. Part (b) prevents the owner from transferring the modified copy without the copyright owner's permission. Part (b) permission is not required, if the end user owns the copy and the computer prior to the installation, no matter who the installation is done by, provided the end user authorizes it to be done.
Psystar couldn't transfer ownership of the modified copy to the end user without Apple's permission.
Right. However, they do not have to ship the computer to the user for ownership to transfer. All they need to do is complete the sale (e.g. have the customer pay them) before being authorized, by the end user, to install the software the user now owns on the computer the user now owns. The latter is what 117(a) explicitly permits.
That limerick is completely misleading of course. No one is stealing Mac OS X. That kext does not prevent anyone from doing so. Its only purpose is to make it difficult to run Mac OS X on non-Apple hardware. Running Mac OS X on non-Apple hardware is not against the law and it is not stealing. Provided that it is legitimately acquired of course.
Yes. That is one way to do it, perhaps the safest way. With a first boot CD, they probably wouldn't need authorization from the user though, because the user would be running the adaptation software, not Psystar.
My suggestion is that Psystar could do this on behalf of the user before the computer ships, with appropriate authorization from the user, if the installation is done *after* the transfer of ownership is made. No stockpiling of modified computers allowed. They cannot sell the derivative work, but they could sell the service of installing Mac OS X once the end user has purchased both the software and the computer.
Providing such a service after the sale probably wouldn't be as efficient as just having the user use a first boot CD though. Another big advantage of the latter is the ability for the user to redo the installation if the hard drive fails, etc. So I like your idea better.
It is very simple. Psystar sells machine, and legitimately acquired copy of Mac OS X to end user. End user authorizes Psystar to install the copy they now own on the computer they now own, as provided for in 17 USC 117(a).
That way Psystar never sells a derivative work at all, rather they simply sell the service of installing legitimate, end user owned copies of Mac OS X on Psystar branded computers. That is what 17 USC 117(a) specifically allows.
My apologies. There is a way around the problem though: Sell the machine and the software to the user first, then have them authorize you to install it with the necessary adaptations.
All that is necessary is for the end user to authorize Psystar to do it for them. The user has to own the computer and a legitimate copy of the software first, of course. 17 USC 117(a).
if I (for example) take a copy of say, Lord of the Rings, and photocopy/re-bind it with a different cover, ... I am all good and its totally fair to the official publisher[?]
As long as you never lend out the original while you are reading the photocopy or vice versa, or transfer ownership of the photocopy, or transfer the original without destroying the photocopy, absolutely. That sort of thing qualifies under fair use. In the case of computer software that exemption is explicit: See 17 USC 117.
There were a lot of problems with what Psystar was doing, but violating the EULA wasn't necessarily one of them. That assumes that a EULA is a legally binding, non-gratuitous license to use a work that the user does not own. Several courts disagree.
That is the theory anyway. It hasn't been uniformly upheld in the courts. Not only that, there are promising developments in the EULA wars:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
Other problems with what they did aside, apparently Psystar did buy and ship a boxed copy of Mac OS X with every (or nearly every) computer they sold.
No one except Apple can legally be in the business of selling unlocked iPhones. But someone could presumably legally be in the business of unlocking iPhones owned by someone else, if authorized by the owner of the phone, of course - See 17 USC 117(a).
Psystar could easily avoid the 117(b) restriction by transferring ownership of the copy to the end user, and then have the end user authorize the copy and adaptation allowed by 117(a) to make the end user owned software work on the end user owned machine.
The way they Psystar has been doing business, yes. But Psystar can legally make an such adaptations once ownership of the copy has been transferred to the end user, if the end user authorizes them to do so, as an "essential step" in utilizing the software on a machine. 17 USC 117(a)(1).
Imaging stations are probably out the window, metaphysical equivalence aside. Suppose you have an imaging station with a legitimate copy of Mac OS X on it. With the user's authorization, can you "copy" that exact same version from the DVD they now own, onto the imaging station, without performing an actual copy? Or do bits need to hit the wire somewhere?
There is a way to avoid that problem. See this comment
"Adaptations so prepared may be transferred only with the authorization of the copyright owner."
Good point. In that case, Psystar needs to do something like the following: Sell a machine and a legitimate copy of Mac OS X to the end user. Have the end user authorize the installation of *that* copy on the machine, with any appropriate adaptations to make it work.
117(a) allows the owner to "authorize" the making of such adaptations necessary to the software on a machine, and 117(b) does not prohibit it.
I am not sure that Psystar needs authorization from the end user to do what they did.
Section 117 provides for exceptions to all the exclusive rights in section 106 under conditions of ownership and essentiality.
Psystar *is* the initial owner of the copy. At that point, they can prepare a copy and adaptation as an essential step in the utilization of the computer program in conjunction with "a machine", and then they resell that machine in conjunction with the original copy.
There are limitations on the Section 106 exclusive rights in subsequent sections, notably Section 117:
This exception was not properly raised, and the court didn't bother to consider it, contributing to the widespread ignorance of this issue, unfortunately.
Section 117(a)(1) provides for just such an exception, provided the modification is "an essential step in the utilization of the computer program in conjunction with a machine". This is definitely the case here.
There is a legal exception to the restriction on creation of copies and derivative works, in 17 USC 117a:
This issue was apparently not properly raised by Psystar. Nonetheless, this section strictly authorizes the creation of copies and derivative works if it is: "an essential step in the utilization of the computer program in conjunction with a machine".
If anything the court's reasoning seems awfully sloppy (nonexistent?) on this point with regard to both copies and derivative works, although I suppose it is not the court's job to make Psystar's case for it.
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/