Streisand'd. Presumably before suing, those nice gentlemen had already resolved not to try to waste time applying for jobs in any country with widely available Internet access...
... whoops, lost my train of thought there... in any case they couldn't have expected a better relatively harmless illustration of their point to happen to them.
I see a lot of kudos going to Microsoft for releasing the source.
That's pretty big of you, oh great Slashdot community, since they've basically done what any presumably expensive legal team would tell them, no?
But perhaps you haven't yet realized that the story of this incident will be long remembered... as it will be rehashed in 40 foot tall flaming allcaps in every MS FUD piece from now until eternity.
This is exactly the kind of 'submarine' GPL code incident that MS has been warning would come of GPL-like 'viral' license (those that require derivative works be made available under similar terms) ever since the time of the Halloween memos when they started to see Linux as a threat. I won't go so far as to suggest that MS manipulated their way into this situation (I see some ideas about the mechanics of that above) but in any case
Hey, when you come up with that Ford Fusion that has a non-electronically controlled automatic transmission and that doesn't have the electronic throttle control that they're wallpapering the world with press releases about, I've got some nice land to sell you to park it on...
Are there any leaked documents around on this? I appreciate Mr. Geist's work, but this is still just a blog post citing unnamed "sources" at this point.
Yeah, are there some serious byzantine MS inter-division politics behind the release of this statement that I don't know about? It's one thing to abdicate responsibility for security flaws in all-caps in your license agreement; it's another thing to be doing it while simultaneously cooking your studies to say "our licensing practices are acutally making vulnerabilities stick around longer".
Hasn't Apple already released 10.6 XNU kernel source? I guess 10.6.2 _could_ be the version that Apple stops releasing x86 kernel sources forever, but quite frankly the rumour mill has been saying that Apple wouldn't be releasing x86 kernel source any more for at least the last two OS versions worth of x86 source code releases.
For a while I've suspected it's so that they can tell the copyright judge that they meant "labeled by Apple, Inc." while still showing the antitrust judge the Apple stickers. =)
It occurred to me that a court might not interpret this as a compatibility measure, but rather only to allow steps that are required even for the most compatible machine.
Nevertheless, they didn't say "any", but they didn't say "every" either. IMO it's not clear either way from the wording.
Interpreting the law as written while ignoring relevant case law is a neat exercise and pretty safe to do since what you figure out is of absolutely no consequence whatsoever. =)
The Israelis in particular are worried about this effect because Israel is a democracy. And the Israeli Palestinians have a fertility rate several times that of Israeli Jews. Again, the average Israeli Palestinian is much poorer than the average Israeli Jew.
The Israelis are concerned because with the higher fertility rates of the Palestinian Israeli citizens, the Palestinians may become a majority in the "Jewish State" in a couple generations. This brings up all kinds of moral dilemmas for the Israeli government, who must try to balance it's commitment to a homeland for the Jews to it's commitment to democracy for all it's citizens.
I've about heard this kind of demographic fear before; if it's widespread in a country, it means that it's a democracy mainly by coincidence, and its true political system is sitting on the fence and taking a hard look at whether if one day the coincidence went away it might actually want to be a democracy.
With that said, I usually hear about this demographic fear, as here, attributed to unnamed Israelis in the kind of publication I don't even trust to get today's weather right. (Sorry Slashdot editors, I know you don't print the weather, but if you did it would be wrong.) I don't know if anyone who hasn't been doing lines of H. P. Lovecraft really thinks this way or not.
I just spent a bunch of time figuring out how MDY vs. Blizzard would relate to the Psystar case, and then read the Aug 21 PsyStar story on Groklaw, which talks about it at length.
If you didn't see my other post, I've basically concluded that according to that case law, section 117 doesn't do anything.
Anyway, back to that Groklaw story.
It makes a point about needing to face the reality of the case law in your jurisdiction, if you want to win a case there. That's well taken; as the amicus response they quote illustrates, the judge has no choice but to follow the case law.
But as for the rest of the article, let's just say I think I have some different answers for the rhetorical questions there than the ones they were expecting.
* Warning: Some sarcasm below. YMMV. *
"No matter how you feel about proprietary EULAs, look at what Psystar did when it decided to ignore Apple's, and maybe then you can at least understand why companies want EULAs."
In this case, Apple wants EULAs for their software so that they can extract the maximum amount of money from each user of their software by making them buy Apple hardware. Presumably, you're saying that people license their software under the GPL in order to make some cash?
"Suppose you wrote code, released it under the GPL, and then someone came along and said he didn't need to abide by its terms. Would you say, OK, never mind? Or would you sue?"
If someone came along and I sold (or even just gave) them a copy of the software I wrote and then they said they didn't need to abide by the terms, and they were going to use it on their own machine and not distribute it, I would say: You are most certainly correct.
If someone came along and said they wanted to distribute the software I wrote against the terms, then I might threaten to sue, but I'd be willing to settle for them giving me any derivative source code changes, and changing their practices so that they were distributing my software under the GPL. They could instead just give me the derivative source code changes and stop distributing the software, but that would mean less distribution of the software, so I'd probably prefer the first option.
I'd love to be a fly on the wall in the meeting where Apple offers Psystar terms under which Psystar can continue distributing Apple's software.
But to be fair Apple will likely probably settle for not much more than Psystar not distributing their software.
"Actually, that happened, with SCO."
SCO distributed GPLed software, and then rounded up a bunch of documentation on their earlier proprietary doings, and marched up to IBM and said "You've got a nice user base here, colonel. We wouldn't want anything to 'appen to it." (apologies to Monty Python - http://www.youtube.com/watch?v=DRm5WcjOikQ )
If someone distributed my software under the terms of the GPL, and then went to tell my users about some of the nasty things that they didn't want to happen to me, I'd take my copy of the GPL to them, and explain to them what they should do to continue distributing my software so that they needn't worry about any nasty things. And in case they needed some extra copies of that explanation I'd also share it with Slashdot, and Groklaw, and the New York Times, etc.
When Apple tells you about the nasty things they don't want to happen to you, it could mean that you've violated the license for their software, (or that you're a blogger on an Apple site and Apple has a product launch coming up, or that the window manager theme you released is nearly as shiny as Apple's own and Apple is worried that they might be losing the shininess race, or that Apple has violated their consent decree with you for an nth time and doesn't you want to miss out on seeing the Goodyear blimp, or...) but it probably comes with a note telling you to tell everyone you know about it.
Actually, reading the summary judgement order from the Glider case (MDY vs. Blizzard, http://virtuallyblind.com/files/mdy/07-14-08_Order.pdf ), they come up with some ninth circuit case law, from Wall Data vs. LA County Sheriff's Dept. ( http://altlaw.org/v1/cases/1139595 ), about who a "copy of a computer program" is owned by for the purpose of s. 117, that reads much like what coiledsnake was saying. From the Wall Data case: "Generally, if the copyright owner makes it clear that she or he is granting only a license to the copy of software and imposes significant restrictions on the purchaser's ability to redistribute or transfer that copy, the purchaser is considered a licensee, not an owner, of the software."
In the Wall Data case, the Sherrif's Dept. imaged Wall Data's software onto more systems than they had licenses for, and then used some management software to prevent more than the licensed number of copies from being used at once, despite the software's EULA having a specific provision that licenses could only be transferred every 30 days.
MDY vs. Blizzard interprets this as a "two-part test", which seems a little rich considering that the bit about "significant restrictions on the purchaser's ability to redistribute" only makes sense because the Wall Data case hinged on the EULA restriction on transferring of licenses. But at any rate, MDY vs. Blizzard also doesn't impose much of a standard for whether "the copyright owner makes it clear that she or he is granting only a license": they decide that since a EULA existed that itself said that "all copies of" the software, then the EULA must apply, and so the software is clearly licensed. (Whether or not the EULA was located in a filing cabinet in a disused lavatory with a sign on the door saying "Beware of the Leopard" was not discussed. =) ) But certainly if whoever installed the software had to click through agreeing to the license as part of the installation process, any court would find that it was clear to that person who did the install that the software is licensed, and that would probably meet this clarity standard.
It's not clear to me, that the Ninth Circuit has any idea what the remaining point would be of s. 117 under this interpretation, but at any rate... =)
So, as long as enough people were licensed copies of Blizzard's software and not sold them, and enough people who used MDY's software for its primary intended purpose would have broken their licenses by doing so, then MDY gets stuck with indirect infringement of some kind (for instance, contributory infringement).
What Apple puts in its list of things that are "licensed, not sold" are the copyrightable works themselves that Apple owns the copyrights for. My assumption was that the reason section 117 says "owner of a copy of a computer program", rather than "owner of a comptuer program" is to specifically refer to the person who paid a retailer in exchange for a copy of the software on it, rather than the copyright holder. But certainly the wording is vague enough to allow for "owner of a copy" to mean the copyright holder like you say. It's not like they said "owner of physical media containing a copy of a computer program", etc.
Slashdot Mirror
Streisand'd. Presumably before suing, those nice gentlemen had already resolved not to try to waste time applying for jobs in any country with widely available Internet access...
... whoops, lost my train of thought there ... in any case they couldn't have expected a better relatively harmless illustration of their point to happen to them.
I see a lot of kudos going to Microsoft for releasing the source.
That's pretty big of you, oh great Slashdot community, since they've basically done what any presumably expensive legal team would tell them, no?
But perhaps you haven't yet realized that the story of this incident will be long remembered... as it will be rehashed in 40 foot tall flaming allcaps in every MS FUD piece from now until eternity.
This is exactly the kind of 'submarine' GPL code incident that MS has been warning would come of GPL-like 'viral' license (those that require derivative works be made available under similar terms) ever since the time of the Halloween memos when they started to see Linux as a threat. I won't go so far as to suggest that MS manipulated their way into this situation (I see some ideas about the mechanics of that above) but in any case
Sorry, are you really asking why distributing code without permission would be piracy? =)
I believe it's spelled "phreak".
There's something I don't get to say every day. =)
Hey, when you come up with that Ford Fusion that has a non-electronically controlled automatic transmission and that doesn't have the electronic throttle control that they're wallpapering the world with press releases about, I've got some nice land to sell you to park it on...
"Also, if the cable gets wet, you have a wet cable."
Gee, really? What were you really trying to say?
Are there any leaked documents around on this? I appreciate Mr. Geist's work, but this is still just a blog post citing unnamed "sources" at this point.
Yeah, are there some serious byzantine MS inter-division politics behind the release of this statement that I don't know about? It's one thing to abdicate responsibility for security flaws in all-caps in your license agreement; it's another thing to be doing it while simultaneously cooking your studies to say "our licensing practices are acutally making vulnerabilities stick around longer".
Hasn't Apple already released 10.6 XNU kernel source? I guess 10.6.2 _could_ be the version that Apple stops releasing x86 kernel sources forever, but quite frankly the rumour mill has been saying that Apple wouldn't be releasing x86 kernel source any more for at least the last two OS versions worth of x86 source code releases.
'round these parts we call 'em parenthesis aficionados...
Ok, nm... Their website claims they preinstall the OS... I guess I was jumping to conclusions.
"As Pystar must modify OS X before it will work on their hardware"
Sorry, don't they give you that Rebel EFI software with the machine and you use it to install Mac OS X from the DVD?
For a while I've suspected it's so that they can tell the copyright judge that they meant "labeled by Apple, Inc." while still showing the antitrust judge the Apple stickers. =)
It occurred to me that a court might not interpret this as a compatibility measure, but rather only to allow steps that are required even for the most compatible machine.
Nevertheless, they didn't say "any", but they didn't say "every" either. IMO it's not clear either way from the wording.
Interpreting the law as written while ignoring relevant case law is a neat exercise and pretty safe to do since what you figure out is of absolutely no consequence whatsoever. =)
The Israelis in particular are worried about this effect because Israel is a democracy. And the Israeli Palestinians have a fertility rate several times that of Israeli Jews. Again, the average Israeli Palestinian is much poorer than the average Israeli Jew.
The Israelis are concerned because with the higher fertility rates of the Palestinian Israeli citizens, the Palestinians may become a majority in the "Jewish State" in a couple generations. This brings up all kinds of moral dilemmas for the Israeli government, who must try to balance it's commitment to a homeland for the Jews to it's commitment to democracy for all it's citizens.
I've about heard this kind of demographic fear before; if it's widespread in a country, it means that it's a democracy mainly by coincidence, and its true political system is sitting on the fence and taking a hard look at whether if one day the coincidence went away it might actually want to be a democracy.
With that said, I usually hear about this demographic fear, as here, attributed to unnamed Israelis in the kind of publication I don't even trust to get today's weather right. (Sorry Slashdot editors, I know you don't print the weather, but if you did it would be wrong.) I don't know if anyone who hasn't been doing lines of H. P. Lovecraft really thinks this way or not.
I just spent a bunch of time figuring out how MDY vs. Blizzard would relate to the Psystar case, and then read the Aug 21 PsyStar story on Groklaw, which talks about it at length.
If you didn't see my other post, I've basically concluded that according to that case law, section 117 doesn't do anything.
Anyway, back to that Groklaw story.
It makes a point about needing to face the reality of the case law in your jurisdiction, if you want to win a case there. That's well taken; as the amicus response they quote illustrates, the judge has no choice but to follow the case law.
But as for the rest of the article, let's just say I think I have some different answers for the rhetorical questions there than the ones they were expecting.
* Warning: Some sarcasm below. YMMV. *
"No matter how you feel about proprietary EULAs, look at what Psystar did when it decided to ignore Apple's, and maybe then you can at least understand why companies want EULAs."
In this case, Apple wants EULAs for their software so that they can extract the maximum amount of money from each user of their software by making them buy Apple hardware. Presumably, you're saying that people license their software under the GPL in order to make some cash?
"Suppose you wrote code, released it under the GPL, and then someone came along and said he didn't need to abide by its terms. Would you say, OK, never mind? Or would you sue?"
If someone came along and I sold (or even just gave) them a copy of the software I wrote and then they said they didn't need to abide by the terms, and they were going to use it on their own machine and not distribute it, I would say: You are most certainly correct.
If someone came along and said they wanted to distribute the software I wrote against the terms, then I might threaten to sue, but I'd be willing to settle for them giving me any derivative source code changes, and changing their practices so that they were distributing my software under the GPL. They could instead just give me the derivative source code changes and stop distributing the software, but that would mean less distribution of the software, so I'd probably prefer the first option.
I'd love to be a fly on the wall in the meeting where Apple offers Psystar terms under which Psystar can continue distributing Apple's software.
But to be fair Apple will likely probably settle for not much more than Psystar not distributing their software.
"Actually, that happened, with SCO."
SCO distributed GPLed software, and then rounded up a bunch of documentation on their earlier proprietary doings, and marched up to IBM and said "You've got a nice user base here, colonel. We wouldn't want anything to 'appen to it." (apologies to Monty Python - http://www.youtube.com/watch?v=DRm5WcjOikQ )
If someone distributed my software under the terms of the GPL, and then went to tell my users about some of the nasty things that they didn't want to happen to me, I'd take my copy of the GPL to them, and explain to them what they should do to continue distributing my software so that they needn't worry about any nasty things. And in case they needed some extra copies of that explanation I'd also share it with Slashdot, and Groklaw, and the New York Times, etc.
When Apple tells you about the nasty things they don't want to happen to you, it could mean that you've violated the license for their software, (or that you're a blogger on an Apple site and Apple has a product launch coming up, or that the window manager theme you released is nearly as shiny as Apple's own and Apple is worried that they might be losing the shininess race, or that Apple has violated their consent decree with you for an nth time and doesn't you want to miss out on seeing the Goodyear blimp, or...) but it probably comes with a note telling you to tell everyone you know about it.
"Did the Linux community say it was fine?"
The Linux community says lots of thing
What do shopping malls have to do with technology?
Sorry, I couldn't pass up a comedic opportunity like that one. =)
Your mom's ovum just made an unauthorized copy of my DNA.
Er... so what does Apple's license say about transferring the license? =)
Actually, reading the summary judgement order from the Glider case (MDY vs. Blizzard, http://virtuallyblind.com/files/mdy/07-14-08_Order.pdf ), they come up with some ninth circuit case law, from Wall Data vs. LA County Sheriff's Dept. ( http://altlaw.org/v1/cases/1139595 ), about who a "copy of a computer program" is owned by for the purpose of s. 117, that reads much like what coiledsnake was saying. From the Wall Data case: "Generally, if the copyright owner makes it clear that she or he is granting only a license to the copy of software and imposes significant restrictions on the purchaser's ability to redistribute or transfer that copy, the purchaser is considered a licensee, not an owner, of the software."
In the Wall Data case, the Sherrif's Dept. imaged Wall Data's software onto more systems than they had licenses for, and then used some management software to prevent more than the licensed number of copies from being used at once, despite the software's EULA having a specific provision that licenses could only be transferred every 30 days.
MDY vs. Blizzard interprets this as a "two-part test", which seems a little rich considering that the bit about "significant restrictions on the purchaser's ability to redistribute" only makes sense because the Wall Data case hinged on the EULA restriction on transferring of licenses. But at any rate, MDY vs. Blizzard also doesn't impose much of a standard for whether "the copyright owner makes it clear that she or he is granting only a license": they decide that since a EULA existed that itself said that "all copies of" the software, then the EULA must apply, and so the software is clearly licensed. (Whether or not the EULA was located in a filing cabinet in a disused lavatory with a sign on the door saying "Beware of the Leopard" was not discussed. =) ) But certainly if whoever installed the software had to click through agreeing to the license as part of the installation process, any court would find that it was clear to that person who did the install that the software is licensed, and that would probably meet this clarity standard.
It's not clear to me, that the Ninth Circuit has any idea what the remaining point would be of s. 117 under this interpretation, but at any rate... =)
So, as long as enough people were licensed copies of Blizzard's software and not sold them, and enough people who used MDY's software for its primary intended purpose would have broken their licenses by doing so, then MDY gets stuck with indirect infringement of some kind (for instance, contributory infringement).
whoops, I meant to say "specifically refer to the person who paid a retailer in exchange for media with a copy of the software on it"
What Apple puts in its list of things that are "licensed, not sold" are the copyrightable works themselves that Apple owns the copyrights for. My assumption was that the reason section 117 says "owner of a copy of a computer program", rather than "owner of a comptuer program" is to specifically refer to the person who paid a retailer in exchange for a copy of the software on it, rather than the copyright holder. But certainly the wording is vague enough to allow for "owner of a copy" to mean the copyright holder like you say. It's not like they said "owner of physical media containing a copy of a computer program", etc.