Get a grip man, what Psystar can do to mitigate damages, and what it can do to avoid a permanent injunction are entirely relevant to the case.
I was referring to physical books delivered at retail sale. However, just because Amazon claims it is licensing a book to you does not mean the license isn't actually a gratuitous legal fiction.
One could make the case that by allowing you to download a book and encode it on persistent media that you own, you now own a copy, that copy is now *yours*, and you don't need a license to look at it.
How has Psystar established this "agency relationship" with its customers?
They haven't, but they could in the future, simply by asking the customers to hire them to install Mac OS X (after the fact) on the computer they are purchasing.
Books can't be legitimately licensed either, by the way, and for the same reason. They can be leased, rented, contracted for, but they cannot be licensed through the ordinary retail sale process because no one needs a license to read a copy they own. That is what the First Sale Doctrine was all about:
And again, 117(a)(1) provides for adaptations "essential" to the use of a copyrighted work in conjunction with a machine, as long as it is down by the owner of the copy, or someone who is "authorized" by that owner. The alternative would be like saying you couldn't make modifications to your own car.
The way they are doing it now, sure. But Psystar could presumably change business practices pretty easily to act as the customer's agent to do the installation / adaptation post sale. It is not an accident that Apple is asking for a permanent injunction.
The way that Psystar could presumably change their business processes to meet legal standards is first sell the end user a bare computer and an uninstalled legitimate copy of OS X. Then have the customer indicate they wan't to hire Psystar as their agent to install the OS X copy they now own on the computer they just purchased.
Then the copy and the adaptation would all fall under Section 117 exceptions and be completely legitimate.
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.
1. No, but they should - an agency relationship is one of the only ways they appear to be able to stay in business. 2. Some courts have deemed EULAs to be a legal fiction. One does not need a license to use a copy that they own. Check out:
3. The GPL can survive just fine, because it grants permission to do something that copyright law already prohibits. Short of going through the rigamarole of an agency relationship every time a customer wants to install a GPL illegitimate derivative work...
1. The copies that Psystar is making could be made legitimate under 17 USC 117(a)(1) by the simple establishment of an agency relationship between the end user and Psystar. 2. The software industry calls EULAs "licenses" for a reason, the theory is the end user doesn't own a copy the way a end user owns a book, ergo First Sale and 117(a) rights do not apply.
The attitude of the courts towards EULAs seems to be changing towards their presumptive invalidity (i.e. the user owns the copy, no further license is necessary). Check out the link I posted above.
Copying the media in a copyright prohibited manner is a completely different issue. I am talking about the validity of EULAs as licenses necessary for the customer to use the software that they purchased. No one needs a license to use a copy that they own. Licenses grant rights that the licensee otherwise would not have.
There are new cases by the way. Check this article out:
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.
Definitely. I was using "res ipsa loquitur" in a colloquial manner, i.e. Apple hires attorneys to argue important issues on their behalf, and if they don't stop them that pretty well implies that they agree with the fundamentals of every filing. The thing speaks for itself.
The Ninth Circuit test seems likely to be revised in the relatively near future, in favor of something that doesn't require a degree in metaphysics to comprehend. This is the best article I have found on the subject:
I'm not sure where slashdotters get this idea that you are allowed to do anything you like with software you have purchased (besides redistribute it), because it doesn't have any basis in reality.
The First Sale Doctrine, Title 17 Section 109 perhaps?
They are bound by any legal licensing terms
You are assuming that EULAs are valid licenses. A license grants permission to do something that the licensee otherwise does not have the right to do. This is not the case - a retail customer does not own the copyright, but they do own the copy. No license is necessary to use something that you own.
That is all assuming that the license here isn't an entire legal fiction. A license is permission to do something one does not already have the right to do. No one needs a license to run a copy of a program that they own anymore than they need a license to read a book that they own.
The legal fiction behind EULAs is the attempt to make an end run around the first sale doctrine (17 USC 109) by the unprecedented claim that they not only hold the copyright, they own the copies as well. The writing appears to be on the wall for that dubious proposition.
"I guess I can start distributing unauthorized copies of Windows, because I never signed a distribution agreement with Microsoft"
That is a non sequitur. You do need legitimate copies, you don't need a distribution agreement.
"And so they don't get to run the software"
Please check out the first sale doctrine, US Code Title 17 Section 109. Someone who has purchased a copy of a copyrighted work has the legal right to sell or dispose of it as they please.
Copyright does not include arbitrary rights to set terms beyond those granted in copyright law, that is why the software industry really, really wants you to believe that an EULA is an enforceable contract between you and them.
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.
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:
Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
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?
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.
EULAs are still largely in a grey area in the United States too. As in lawyers for software companies like to pretend they are valid, but enforcement by courts is haphazard, and everyone else not in the tank for the software companies tends to think they are a legal fiction.
Where is the meeting of the minds, the offer, the acceptance, and the *consideration* between a typical end user and the copyright holder? There is no contract there. The user's contract is a purchase contract between them and the retailer, not Apple. The retailer is not acting as Apple's agent, nor does the retailer require the user to affirm that he or she is leasing a copy that is actually owned by someone else.
Is an indefinite, all money up front lease actually a lease? Even with wording to that effect, sounds more like a sale to me.
Assuming you purchased the book, only by copyright, not by some sort of hypothetical license. The same goes for software - if Apple wants greater control than is provided by copyright, they need to lease copies of the software to customers, rather than sell them to people who sell them to people who sell them to customers.
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".
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Get a grip man, what Psystar can do to mitigate damages, and what it can do to avoid a permanent injunction are entirely relevant to the case.
I was referring to physical books delivered at retail sale. However, just because Amazon claims it is licensing a book to you does not mean the license isn't actually a gratuitous legal fiction.
One could make the case that by allowing you to download a book and encode it on persistent media that you own, you now own a copy, that copy is now *yours*, and you don't need a license to look at it.
How has Psystar established this "agency relationship" with its customers?
They haven't, but they could in the future, simply by asking the customers to hire them to install Mac OS X (after the fact) on the computer they are purchasing.
Books can't be legitimately licensed either, by the way, and for the same reason. They can be leased, rented, contracted for, but they cannot be licensed through the ordinary retail sale process because no one needs a license to read a copy they own. That is what the First Sale Doctrine was all about:
http://www.tabberone.com/Trademarks/CopyrightLaw/FirstSaleDoctrine/FirstSale.shtml
And again, 117(a)(1) provides for adaptations "essential" to the use of a copyrighted work in conjunction with a machine, as long as it is down by the owner of the copy, or someone who is "authorized" by that owner. The alternative would be like saying you couldn't make modifications to your own car.
The way they are doing it now, sure. But Psystar could presumably change business practices pretty easily to act as the customer's agent to do the installation / adaptation post sale. It is not an accident that Apple is asking for a permanent injunction.
The way that Psystar could presumably change their business processes to meet legal standards is first sell the end user a bare computer and an uninstalled legitimate copy of OS X. Then have the customer indicate they wan't to hire Psystar as their agent to install the OS X copy they now own on the computer they just purchased.
Then the copy and the adaptation would all fall under Section 117 exceptions and be completely legitimate.
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.
1. No, but they should - an agency relationship is one of the only ways they appear to be able to stay in business.
2. Some courts have deemed EULAs to be a legal fiction. One does not need a license to use a copy that they own. Check out:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
3. The GPL can survive just fine, because it grants permission to do something that copyright law already prohibits. Short of going through the rigamarole of an agency relationship every time a customer wants to install a GPL illegitimate derivative work...
1. The copies that Psystar is making could be made legitimate under 17 USC 117(a)(1) by the simple establishment of an agency relationship between the end user and Psystar.
2. The software industry calls EULAs "licenses" for a reason, the theory is the end user doesn't own a copy the way a end user owns a book, ergo First Sale and 117(a) rights do not apply.
The attitude of the courts towards EULAs seems to be changing towards their presumptive invalidity (i.e. the user owns the copy, no further license is necessary). Check out the link I posted above.
Copying the media in a copyright prohibited manner is a completely different issue. I am talking about the validity of EULAs as licenses necessary for the customer to use the software that they purchased. No one needs a license to use a copy that they own. Licenses grant rights that the licensee otherwise would not have.
There are new cases by the way. Check this article out:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
As the writer said, Vernor and Augusto here are a breath of fresh air.
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.
Definitely. I was using "res ipsa loquitur" in a colloquial manner, i.e. Apple hires attorneys to argue important issues on their behalf, and if they don't stop them that pretty well implies that they agree with the fundamentals of every filing. The thing speaks for itself.
The Ninth Circuit test seems likely to be revised in the relatively near future, in favor of something that doesn't require a degree in metaphysics to comprehend. This is the best article I have found on the subject:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
Definitely worth reading.
I wouldn't be so pessimistic - check this out:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
You don't have to sign one for it to be valid.
That is what they would like you to think. A court of law may see it differently.
Windows, OS X, and yes, even Linux are licensed to you, with restrictions.
That is the fiction anyway, a fiction which is in serious danger of being overturned:
http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
I'm not sure where slashdotters get this idea that you are allowed to do anything you like with software you have purchased (besides redistribute it), because it doesn't have any basis in reality.
The First Sale Doctrine, Title 17 Section 109 perhaps?
They are bound by any legal licensing terms
You are assuming that EULAs are valid licenses. A license grants permission to do something that the licensee otherwise does not have the right to do. This is not the case - a retail customer does not own the copyright, but they do own the copy. No license is necessary to use something that you own.
Check out http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
That is all assuming that the license here isn't an entire legal fiction. A license is permission to do something one does not already have the right to do. No one needs a license to run a copy of a program that they own anymore than they need a license to read a book that they own.
The legal fiction behind EULAs is the attempt to make an end run around the first sale doctrine (17 USC 109) by the unprecedented claim that they not only hold the copyright, they own the copies as well. The writing appears to be on the wall for that dubious proposition.
See http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/
"I guess I can start distributing unauthorized copies of Windows, because I never signed a distribution agreement with Microsoft"
That is a non sequitur. You do need legitimate copies, you don't need a distribution agreement.
"And so they don't get to run the software"
Please check out the first sale doctrine, US Code Title 17 Section 109. Someone who has purchased a copy of a copyrighted work has the legal right to sell or dispose of it as they please.
Copyright does not include arbitrary rights to set terms beyond those granted in copyright law, that is why the software industry really, really wants you to believe that an EULA is an enforceable contract between you and them.
I don't think the words that you are referring to mean what you think they mean.
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.
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?
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.
EULAs are still largely in a grey area in the United States too. As in lawyers for software companies like to pretend they are valid, but enforcement by courts is haphazard, and everyone else not in the tank for the software companies tends to think they are a legal fiction.
Where is the meeting of the minds, the offer, the acceptance, and the *consideration* between a typical end user and the copyright holder? There is no contract there. The user's contract is a purchase contract between them and the retailer, not Apple. The retailer is not acting as Apple's agent, nor does the retailer require the user to affirm that he or she is leasing a copy that is actually owned by someone else.
Is an indefinite, all money up front lease actually a lease? Even with wording to that effect, sounds more like a sale to me.
Even with a book you are restricted.
Assuming you purchased the book, only by copyright, not by some sort of hypothetical license. The same goes for software - if Apple wants greater control than is provided by copyright, they need to lease copies of the software to customers, rather than sell them to people who sell them to people who sell them to customers.
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".