But what happens when people find a way to rip people off using *that* model?
If I'm charging for my labor, the only way to rip me off is to kidnap me and force me into slavery, or to promise to pay me when I'm finished and then skip out when the bill comes. And we already have pretty effective laws against all that.
Does each model work for all industries as well as the current one does/did, such as for classical orchestras/composers, jazz musicians, authors etc?
Is that actually a requirement? Perhaps the current model only works well -- for producers, not for consumers! -- because of a blip in the timeline of technological progress: the relatively short era in which it was feasible for wealthy corporations to mass-produce copies but not for individuals to do the same. Perhaps the balance has tipped too far in favor of producers, and it's time to even things out.
Piracy, on the other hand, puts the authors and creators out of work. The final stage of piracy is that no one can earn a living from their work that is benefiting society.
No. The final stage of piracy is that no one can earn a living by selling copies of works they've already created, and they move on to a business model that isn't threatened by piracy, like charging directly for the act of creation -- that is, charging for their labor, which is how billions of people already earn a living.
Anyone who benefits from the existence of that stuff... mostly the same people who buy copies now. Readers benefit from having new books written. Film buffs benefit from having new movies made. (Third parties also benefit indirectly: e.g. someone who's in the business of selling Blu-Ray players benefits a little from having new movies released on Blu-Ray.)
Let's say you make a movie which costs 100 million $ to make, how can you recover those costs if not through the small contribution of 10$ from the millions of people who watch (consume?) that movie?
I agree!
However, today's copyright-based business model is not the only way to collect $10 from ten million people.
In fact, compared to the alternative (collecting the money up front and then distributing the movie for free), it has some serious drawbacks: when you spend $100 million out of your own pocket, you're taking a huge gamble. If the movie doesn't sell as many tickets as you hoped, you've just lost millions of dollars. On the other hand, if you're a film fan thinking about contributing $10 to the production of an upcoming movie, you only stand to lose the price of a sandwich and coffee, and the movie producer knows ahead of time whether or not the movie will turn a profit.
You completely neglect the fact that drug companies patent drugs and make back their research costs (through monopoly pricing) over the first couple of decades of sales.
If you don't like the example, substitute a different product -- there are countless other examples. Bottled water, for instance, or pretty much anything else that's edible.
I'm talking about commodities. Ibuprofen is now a commodity, although it wasn't when it was still under patent, and it's still profitable all around even though anyone can manufacture it. If you're in the business of manufacturing stuff and selling it, piracy is not a problem. Piracy is only a problem for drug makers when they combine the two separate businesses of research and manufacturing.
Your suggestion that they come up with an hourly rate for research is nonsensical. Who do they present the bill to? You? The government?
Whoever is interested in having new stuff designed. For example, I don't know about you, but I'm sick of jumping through hoops to buy Sudafed, so I'd gladly throw in a few bucks toward research for a new cold medication that works better than phenylephrine (the ineffective OTC alternative to Sudafed). I have demand for that research, and connecting demand with supply is exactly what the free market excels at: some middleman will spring up to collect money from me and other like-minded individuals and funnel it to researchers.
So you're saying writers and singers should get paid by the hour, just like engineers and programmers. That's fine but if people copy the books and songs, rather than pay for them, how will the corporation pay those wages?
By collecting the money (or at least binding agreements to pay) up front. You can't copy a book before it's been written, and a savvy author won't write the book before he knows he's getting paid.
The corporation would not be in the business of selling books, but rather in the business of collecting money from thousands of readers (or other interested parties who want a new book to be written) and funneling it to the author, taking a cut for themselves to cover marketing and transaction fees and such.
The ability to raise thousands or millions of dollars from small individual contributions is already well documented. Look at any political blog, and you'll find ads for sites like ActBlue that do exactly that -- and unlike readers who are paying for an author's services, these people contribute even though they don't really know what they're getting and can't demand a refund if their candidate loses.
And once again, as already demonstrated, section 117 does not apply because Psystar has not yet demonstrated non-infringing ownership. The essential step must be in the rightful utilization of the program by a rightful owner.
So if you buy a copy of OS X, you don't actually own it until you install it on a Mac? That is patently absurd.
The provision creates a limited exception to the exclusive rights of reproduction and adaptation, not of distribution.
If I buy a copy of OS X from Psystar, they don't need any special permission to deliver it to me. And if I authorize them to make an adaptation on my behalf, they again don't need any special permission to deliver it to me. They are acting as my agent, doing only the same things that I could do myself, and delegating the adaptation to a third party is explicitly allowed by 117.
Do you really think that Psystar waits for a customer to make an order, sells them the OS, then asks them "do you authorize us to make an adaptation of this OS you bought" and then installs it on a computer and ships it to them? Of course not! They are installing this ahead of time, and shipping them out when they get an order.
If so, then perhaps that will be their downfall. But if that's the case, bringing their process in line with the law would still only require a small change. The customer implicitly authorizes Psystar to make an adaptation when they buy a computer that they expect to contain an adapted copy of OS X.
I'm not sure what kind of bizarro world you are living in, because you don't really seem to know anything about anything, and are just making shit up, because there's nothing about this in copyright law.
Heh. Project much?
The "goods" in this case being a disc, and a license to use it in limited ways, not in the way that Psystar is.
A copy of OS X is an inseparable part of that disc. If you own the disc, you own the copy, just like you own a copy of a story when you buy a book.
Apparently you don't. Copyright law doesn't give Psystar this right, and copyrighted works can be restricted by licenses.
Copyrighted works cannot be unilaterally restricted by licenses.
A license agreement is a contract: in exchange for X, you get a license to do Y. You have to agree to the terms in order for those restrictions to apply. If you decline, you don't get a license to do Y, but you don't give up X either.
In this case, you don't need a license to do Y, because you already have the right to do it under 17 USC 117.
Furthermore, a contract that only purports to give you rights you already have is not a contract at all. Both sides have to get something in order for a contract to exist: that's why when you give away a car or some land, you fill the paperwork out as if you're selling it for $1.
The fix is not to make it inconvenient to pirate stuff... I realize this is what they're trying to accomplish with DRM and whatnot. But that isn't the fix. The fix is to make people want to legitimately purchase your product.
Or, even better, to abandon the idea that you're manufacturing a product in the first place.
People whose business is making products don't have a piracy problem. Wyeth (maker of Advil) hasn't gone out of business just because you can find store-brand ibuprofen on the same shelf, and the store-brand manufacturers haven't gone out of business just because you can find Advil on the same shelf. They all make money by charging a little more per pill than it costs them to make. And the price doesn't fall to zero, because it actually does cost something to make a bottle of pills.
Piracy is only a problem for people whose real business is designing stuff but who are afraid to embrace a business model in which they get paid for designing stuff. Instead they pretend that they're manufacturing a product, even though the marginal cost of each unit is approximately zero -- it'd be like a therapist charging you every time you went out in public without fear, for the rest of your life, instead of charging an hourly rate for the time she spent treating your agoraphobia. They treat their business like a lottery, hoping to hit it big by selling a ton of copies, rather than coming up with an honest valuation of their "designing stuff" labor and leaving distribution up to those who can do it more efficiently.
Unless Apple's argument is that all owners of a copy waive their rights under 17 USC 117 in the EULA.
So, what happens if Psystar and their end users decline the EULA? They forfeit whatever additional rights the EULA would have given them, and they go back to the rights they had under copyright law the moment they bought it, including the right under 117 to make copies or adaptations.
The case is further muddled by the fact that they do have a license to make a copy to an ebook reader, just not that ebook reader.
But here's where the analogy to books breaks down: copyright law explicitly allows them to make that copy (since OS X is software, not a book). They don't need a license.
They purchased boxes from Apple and thus own the boxes.
Inside each of those boxes is a disc, which they also own, and the copy of OS X is an inseparable part of that disc, so they own it as well.
Copying the OS to a Macintosh hard drive is a necessary step in using the ownership interest possessed by a legitimate owner. Copying the OS to the hard drive of a non-Apple system is not a necessary step.
Nonsense. It is a necessary step in "the utilization of [OS X] in conjunction with a machine" when that machine is not an Apple system. Nowhere in 17 USC 117 does it restrict these rights to machines approved by the copyright holder.
No, the same bits do not end up being copied, as Psystar has modified the copy before installing.
Yes, that's an "adaptation" as allowed by section 117. The customer, having bought a copy of OS X from Psystar, authorizes Psystar to make an adaptation of OS X on their behalf. Psystar makes the customer's adaptation by duplicating an adaptation they previously made from their own copy of OS X. If Psystar installed OS X from the disc onto the target computer and then patched it, they'd end up with the same bits and thus the same adaptation.
Except, of course that's not true.
Actually, it is.
1. Section 117 applies to "the owner of a copy of a computer program". This is stated in the text of the law.
2. Psystar becomes the owner of a copy of OS X the moment they buy a copy of OS X. This is literally the most fundamental economic principle: when you exchange money for goods, you become the owner of the goods and the seller becomes the owner of your money.
3. Two true statements connected by "and" form a single true statement. This is basic English grammar.
Do you have any understanding of copyright law whatsoever?
More than you, apparently. I know that you don't need a license to exercise the rights given to you by copyright law.
Apple is selling OS X live CDs now, are they? And you can fully utilize every program and feature of OS X without installing it to a hard drive? If so, you may have a point, but somehow I think that's not the case.
Except that it doesn't. Psystar isn't using the original copy to install the software (it is cloning a different copy from a hard drive), and hasn't actually proven that it is buying original copies for each sale.
The law doesn't specify that they have to use the original copy. The same bits end up being copied, and thus the same copy is made, no matter where the bits come from. (In fact, if you want to get technical about it, no copy is ever made directly from original media: data is loaded from the source into RAM first, and then written from RAM to the destination.)
As for whether or not Psystar is actually buying a copy of OS X for every copy they sell, that's an interesting accusation, but the ball is in Apple's court to prove infringement.
Additionally, 17 USC 117 only applies to authorized copies, and Psystar isn't using authorized copies, because there is no authorization to install on non-Apple hardware.
No, there is no such limitation on 17 USC 117. Read it again. It applies to "the owner of a copy of a computer program", and Psystar becomes that owner the moment they buy a copy.
The act of installing OS X on a non-Apple computer does not send a ripple back through time to undo the original purchase. At best, it voids the EULA and revokes any extra rights that license might have granted, but it can't revoke rights that are granted by copyright law itself: Psystar has rights under section 117 simply by virtue of owning a copy of OS X, and an end user has those rights the moment he buys that copy from Psystar.
The operation of the software by a user is a usage right.
Call it whatever you want, but the fact is that once you legally obtain a copy of a program, you don't need anyone's permission to run it. If you disagree, please cite the law that someone would be violating by running a copy of a program they own.
Section 117 does not apply for three reasons: Psystar has not demonstrated a legitimate claim of ownership under the Act, the copying is not a necessary step in the utilization of the product in the scope sold, and most directly, section 117 does not cure an infringer when the originating copy is itself unauthorized.
1. They bought copies of the software from Apple; thus they own those copies.
2. Copying an OS onto a hard drive is obviously a necessary step in using it. You do understand what an operating system is, don't you?
3. See #1.
In order for the "necessary copy" provision to engage, it must first be established that Psystar has a legitimate legal interest in the copyrighted work known as OS X.
They can easily do that by producing their receipts. Or are you suggesting that Psystar didn't actually buy the copies of OS X that they sold to their customers?
I'm betting that the SCOTUS, whenever they get around to hearing such a case, will rule EULAs valid contracts so long as the customer has the ability to get a full refund after viewing the contract.
Perhaps. But for the contract to be valid at all, the developer would have to offer something you don't already have -- it isn't a contract to say "I'll let you exercise your section 117 rights if you agree to these terms". And if you reject a contract that does offer something new, you don't lose the rights you already have; you just don't gain the additional ones.
But they are copying it. How else does it get installed on the hard drive?
17 USC 117 gives them the right to install it on the hard drive, and then to transfer that copy when they sell the original. (Alternatively: they sell the original to the customer, then install it on the customer's behalf, which is also allowed by section 117.)
Nonsense. Nothing gives Psystar the right to use the software in violation of the licensing terms.
See above. They don't need any license to do something that copyright law specifically allows.
Psystar copied OS X files to various duplication servers. Question is if this is an "essential step" to utilizing the software, or if only happened to make life easier for Psystar.
Good point, but on the other hand, one could argue that those intermediate copies are "for archival purposes": collecting information in one place for more convenient access at a later time is one use of an archive.
It reminds me of what mp3.com was busted for. They purchased CDs and then sold copies of pre-made MP3s to customers. Turned out their MP3 archive was one big massive copyright law violation.
Indeed, but I think the legal differences between music and software will work in Psystar's favor here.
Not exactly. Pystar did a few things wrong. They used disk duplication software to install the copies, rather than running the installer from the CD. They did not have a license to make copies in this way.
The owner of a copy of OS X has the legal right to make copies as needed to use it with a computer. How those copies are made is irrelevant: AFAICT, nowhere in copyright law is there any distinction between copying files via an installer, copying them directly from a CD to a hard drive, or copying them to an intermediate buffer and then to a hard drive. You end up with the same bits no matter what.
More importantly, they modified the software to allow booting on other machines and to subvert the automatic update mechanism. They then distributed copies of these derived works.
The same law that grants the right to make necessary copies (17 USC 117) also grants the right to make necessary adaptations -- like Psystar's modified version. It also grants the right to authorize a third party to make those copies or adaptations on your behalf.
If there is a weakness in Psystar's case, it's the possible ambiguity about who owns the copy of OS X at the moment that the adaptation is made. You can adapt software you own, and you can have someone else adapt software you own on your behalf, but if you want to transfer that adaptation when you sell the software, you need the copyright holder's permission.
So the question is, does the customer buy OS X and then have Psystar adapt it, or is Psystar selling an adaptation that they own? Does copying a previously adapted image count as "making an adaptation", or would they have to copy an unmodified image and then patch it?
Either way, it's clear that Psystar is acting within the spirit of the law: copying an unmodified image first and then patching it is slightly less convenient than copying a pre-patched image, but ultimately equivalent. It's somewhat unreasonable to require them to change their patching process when the end result is identical.
Personally, I would love to see it made explicit in copyright law that you can distribute derived works of a copyrighted work as long as you also distribute a legal license for the original (so, for example, you could distribute DVDs along with alternate edits), but there is existing precedent in the US that this is not legal.
Maybe not for movies, but it is legal for software. Not all copyrighted works are treated equally. (Another example: you can't rent out software, even though you can rent out movies.)
What Psystar is doing here is the equivalent of copying the book, slapping on a different cover, and selling it for profit.
No... it's the equivalent of buying a book, slapping on a different cover, and selling it for profit.
It's not like reselling a book, or installing Mac OS X on your personal hackintosh.
On the contrary, that is exactly what it's like. Check your facts. Psystar resells copies of OS X that they purchased; they don't make their own copies. And the same law that gives you the right to install your copy of OS X on your personal hackintosh also gives you the right to authorize someone else (like Psystar) to do it on your behalf.
The current law is the current law, and Apple is legally correct.
No, they aren't. You (and Apple) are ignoring 17 USC 117, which explicitly allows making a copy or adaptation of software in order to run it. It was even mentioned in the summary!
If you believe that the current law is not optimal, that's a matter to take up with the legislature. Arguing that the lawyers and courts are wrong for following the law is downright silly.
They're not following the law. They're following the parts they like and ignoring the parts they don't like.
Actually, wasn't the idea that copying a program from disk to RAM need specific permission, something that was ruled on very long ago?
That may have been the case before 1980, but 17 USC 117 now explicitly allows the owner of a copy of a program to make additional copies or adaptations as needed to run it.
You're the proud owner of a box and its contents, but you lack legal possession of the usage rights, which is 95% of the value.
There's no such thing as "usage rights" regarding a copy of software that you own. 17 USC 117 says you're entitled to make additional copies (i.e. copying it to the hard drive or into RAM) or adaptations (i.e. patching it to work on non-Apple hardware) of that software as needed to run it. There is no software usage right in law, there's only copyright, and copyright law specifically allows this.
Just because the developers of Windows and Linux have chosen to let you run their OS on any x86 machine, doesn't mean you automatically have the right to run any piece of software you like on your machine.
You're right, technically, but 17 USC 117does mean you automatically have the right to run any piece of software you own on your machine. You don't need permission from the copyright holder to install or run software, or to adapt it to run on your machine; copyright law itself grants you those rights.
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Minor nit: Apple completed the job of removing all DRM from iTunes earlier this year.
For music, but not for video.
But what happens when people find a way to rip people off using *that* model?
If I'm charging for my labor, the only way to rip me off is to kidnap me and force me into slavery, or to promise to pay me when I'm finished and then skip out when the bill comes. And we already have pretty effective laws against all that.
Does each model work for all industries as well as the current one does/did, such as for classical orchestras/composers, jazz musicians, authors etc?
Is that actually a requirement? Perhaps the current model only works well -- for producers, not for consumers! -- because of a blip in the timeline of technological progress: the relatively short era in which it was feasible for wealthy corporations to mass-produce copies but not for individuals to do the same. Perhaps the balance has tipped too far in favor of producers, and it's time to even things out.
Piracy, on the other hand, puts the authors and creators out of work. The final stage of piracy is that no one can earn a living from their work that is benefiting society.
No. The final stage of piracy is that no one can earn a living by selling copies of works they've already created, and they move on to a business model that isn't threatened by piracy, like charging directly for the act of creation -- that is, charging for their labor, which is how billions of people already earn a living.
But who would pay for "designing stuff?"
Anyone who benefits from the existence of that stuff... mostly the same people who buy copies now. Readers benefit from having new books written. Film buffs benefit from having new movies made. (Third parties also benefit indirectly: e.g. someone who's in the business of selling Blu-Ray players benefits a little from having new movies released on Blu-Ray.)
Let's say you make a movie which costs 100 million $ to make, how can you recover those costs if not through the small contribution of 10$ from the millions of people who watch (consume?) that movie?
I agree!
However, today's copyright-based business model is not the only way to collect $10 from ten million people.
In fact, compared to the alternative (collecting the money up front and then distributing the movie for free), it has some serious drawbacks: when you spend $100 million out of your own pocket, you're taking a huge gamble. If the movie doesn't sell as many tickets as you hoped, you've just lost millions of dollars. On the other hand, if you're a film fan thinking about contributing $10 to the production of an upcoming movie, you only stand to lose the price of a sandwich and coffee, and the movie producer knows ahead of time whether or not the movie will turn a profit.
You completely neglect the fact that drug companies patent drugs and make back their research costs (through monopoly pricing) over the first couple of decades of sales.
If you don't like the example, substitute a different product -- there are countless other examples. Bottled water, for instance, or pretty much anything else that's edible.
I'm talking about commodities. Ibuprofen is now a commodity, although it wasn't when it was still under patent, and it's still profitable all around even though anyone can manufacture it. If you're in the business of manufacturing stuff and selling it, piracy is not a problem. Piracy is only a problem for drug makers when they combine the two separate businesses of research and manufacturing.
Your suggestion that they come up with an hourly rate for research is nonsensical. Who do they present the bill to? You? The government?
Whoever is interested in having new stuff designed. For example, I don't know about you, but I'm sick of jumping through hoops to buy Sudafed, so I'd gladly throw in a few bucks toward research for a new cold medication that works better than phenylephrine (the ineffective OTC alternative to Sudafed). I have demand for that research, and connecting demand with supply is exactly what the free market excels at: some middleman will spring up to collect money from me and other like-minded individuals and funnel it to researchers.
So you're saying writers and singers should get paid by the hour, just like engineers and programmers. That's fine but if people copy the books and songs, rather than pay for them, how will the corporation pay those wages?
By collecting the money (or at least binding agreements to pay) up front. You can't copy a book before it's been written, and a savvy author won't write the book before he knows he's getting paid.
The corporation would not be in the business of selling books, but rather in the business of collecting money from thousands of readers (or other interested parties who want a new book to be written) and funneling it to the author, taking a cut for themselves to cover marketing and transaction fees and such.
The ability to raise thousands or millions of dollars from small individual contributions is already well documented. Look at any political blog, and you'll find ads for sites like ActBlue that do exactly that -- and unlike readers who are paying for an author's services, these people contribute even though they don't really know what they're getting and can't demand a refund if their candidate loses.
And once again, as already demonstrated, section 117 does not apply because Psystar has not yet demonstrated non-infringing ownership. The essential step must be in the rightful utilization of the program by a rightful owner.
So if you buy a copy of OS X, you don't actually own it until you install it on a Mac? That is patently absurd.
The provision creates a limited exception to the exclusive rights of reproduction and adaptation, not of distribution.
If I buy a copy of OS X from Psystar, they don't need any special permission to deliver it to me. And if I authorize them to make an adaptation on my behalf, they again don't need any special permission to deliver it to me. They are acting as my agent, doing only the same things that I could do myself, and delegating the adaptation to a third party is explicitly allowed by 117.
Do you really think that Psystar waits for a customer to make an order, sells them the OS, then asks them "do you authorize us to make an adaptation of this OS you bought" and then installs it on a computer and ships it to them? Of course not! They are installing this ahead of time, and shipping them out when they get an order.
If so, then perhaps that will be their downfall. But if that's the case, bringing their process in line with the law would still only require a small change. The customer implicitly authorizes Psystar to make an adaptation when they buy a computer that they expect to contain an adapted copy of OS X.
I'm not sure what kind of bizarro world you are living in, because you don't really seem to know anything about anything, and are just making shit up, because there's nothing about this in copyright law.
Heh. Project much?
The "goods" in this case being a disc, and a license to use it in limited ways, not in the way that Psystar is.
A copy of OS X is an inseparable part of that disc. If you own the disc, you own the copy, just like you own a copy of a story when you buy a book.
Apparently you don't. Copyright law doesn't give Psystar this right, and copyrighted works can be restricted by licenses.
Copyrighted works cannot be unilaterally restricted by licenses.
A license agreement is a contract: in exchange for X, you get a license to do Y. You have to agree to the terms in order for those restrictions to apply. If you decline, you don't get a license to do Y, but you don't give up X either.
In this case, you don't need a license to do Y, because you already have the right to do it under 17 USC 117.
Furthermore, a contract that only purports to give you rights you already have is not a contract at all. Both sides have to get something in order for a contract to exist: that's why when you give away a car or some land, you fill the paperwork out as if you're selling it for $1.
The fix is not to make it inconvenient to pirate stuff... I realize this is what they're trying to accomplish with DRM and whatnot. But that isn't the fix. The fix is to make people want to legitimately purchase your product.
Or, even better, to abandon the idea that you're manufacturing a product in the first place.
People whose business is making products don't have a piracy problem. Wyeth (maker of Advil) hasn't gone out of business just because you can find store-brand ibuprofen on the same shelf, and the store-brand manufacturers haven't gone out of business just because you can find Advil on the same shelf. They all make money by charging a little more per pill than it costs them to make. And the price doesn't fall to zero, because it actually does cost something to make a bottle of pills.
Piracy is only a problem for people whose real business is designing stuff but who are afraid to embrace a business model in which they get paid for designing stuff. Instead they pretend that they're manufacturing a product, even though the marginal cost of each unit is approximately zero -- it'd be like a therapist charging you every time you went out in public without fear, for the rest of your life, instead of charging an hourly rate for the time she spent treating your agoraphobia. They treat their business like a lottery, hoping to hit it big by selling a ton of copies, rather than coming up with an honest valuation of their "designing stuff" labor and leaving distribution up to those who can do it more efficiently.
Unless Apple's argument is that all owners of a copy waive their rights under 17 USC 117 in the EULA.
So, what happens if Psystar and their end users decline the EULA? They forfeit whatever additional rights the EULA would have given them, and they go back to the rights they had under copyright law the moment they bought it, including the right under 117 to make copies or adaptations.
The case is further muddled by the fact that they do have a license to make a copy to an ebook reader, just not that ebook reader.
But here's where the analogy to books breaks down: copyright law explicitly allows them to make that copy (since OS X is software, not a book). They don't need a license.
They purchased boxes from Apple and thus own the boxes.
Inside each of those boxes is a disc, which they also own, and the copy of OS X is an inseparable part of that disc, so they own it as well.
Copying the OS to a Macintosh hard drive is a necessary step in using the ownership interest possessed by a legitimate owner. Copying the OS to the hard drive of a non-Apple system is not a necessary step.
Nonsense. It is a necessary step in "the utilization of [OS X] in conjunction with a machine" when that machine is not an Apple system. Nowhere in 17 USC 117 does it restrict these rights to machines approved by the copyright holder.
No, the same bits do not end up being copied, as Psystar has modified the copy before installing.
Yes, that's an "adaptation" as allowed by section 117. The customer, having bought a copy of OS X from Psystar, authorizes Psystar to make an adaptation of OS X on their behalf. Psystar makes the customer's adaptation by duplicating an adaptation they previously made from their own copy of OS X. If Psystar installed OS X from the disc onto the target computer and then patched it, they'd end up with the same bits and thus the same adaptation.
Except, of course that's not true.
Actually, it is.
1. Section 117 applies to "the owner of a copy of a computer program". This is stated in the text of the law.
2. Psystar becomes the owner of a copy of OS X the moment they buy a copy of OS X. This is literally the most fundamental economic principle: when you exchange money for goods, you become the owner of the goods and the seller becomes the owner of your money.
3. Two true statements connected by "and" form a single true statement. This is basic English grammar.
Do you have any understanding of copyright law whatsoever?
More than you, apparently. I know that you don't need a license to exercise the rights given to you by copyright law.
Apple is selling OS X live CDs now, are they? And you can fully utilize every program and feature of OS X without installing it to a hard drive? If so, you may have a point, but somehow I think that's not the case.
Except that it doesn't. Psystar isn't using the original copy to install the software (it is cloning a different copy from a hard drive), and hasn't actually proven that it is buying original copies for each sale.
The law doesn't specify that they have to use the original copy. The same bits end up being copied, and thus the same copy is made, no matter where the bits come from. (In fact, if you want to get technical about it, no copy is ever made directly from original media: data is loaded from the source into RAM first, and then written from RAM to the destination.)
As for whether or not Psystar is actually buying a copy of OS X for every copy they sell, that's an interesting accusation, but the ball is in Apple's court to prove infringement.
Additionally, 17 USC 117 only applies to authorized copies, and Psystar isn't using authorized copies, because there is no authorization to install on non-Apple hardware.
No, there is no such limitation on 17 USC 117. Read it again. It applies to "the owner of a copy of a computer program", and Psystar becomes that owner the moment they buy a copy.
The act of installing OS X on a non-Apple computer does not send a ripple back through time to undo the original purchase. At best, it voids the EULA and revokes any extra rights that license might have granted, but it can't revoke rights that are granted by copyright law itself: Psystar has rights under section 117 simply by virtue of owning a copy of OS X, and an end user has those rights the moment he buys that copy from Psystar.
The operation of the software by a user is a usage right.
Call it whatever you want, but the fact is that once you legally obtain a copy of a program, you don't need anyone's permission to run it. If you disagree, please cite the law that someone would be violating by running a copy of a program they own.
Section 117 does not apply for three reasons: Psystar has not demonstrated a legitimate claim of ownership under the Act, the copying is not a necessary step in the utilization of the product in the scope sold, and most directly, section 117 does not cure an infringer when the originating copy is itself unauthorized.
1. They bought copies of the software from Apple; thus they own those copies.
2. Copying an OS onto a hard drive is obviously a necessary step in using it. You do understand what an operating system is, don't you?
3. See #1.
In order for the "necessary copy" provision to engage, it must first be established that Psystar has a legitimate legal interest in the copyrighted work known as OS X.
They can easily do that by producing their receipts. Or are you suggesting that Psystar didn't actually buy the copies of OS X that they sold to their customers?
I'm betting that the SCOTUS, whenever they get around to hearing such a case, will rule EULAs valid contracts so long as the customer has the ability to get a full refund after viewing the contract.
Perhaps. But for the contract to be valid at all, the developer would have to offer something you don't already have -- it isn't a contract to say "I'll let you exercise your section 117 rights if you agree to these terms". And if you reject a contract that does offer something new, you don't lose the rights you already have; you just don't gain the additional ones.
But they are copying it. How else does it get installed on the hard drive?
17 USC 117 gives them the right to install it on the hard drive, and then to transfer that copy when they sell the original. (Alternatively: they sell the original to the customer, then install it on the customer's behalf, which is also allowed by section 117.)
Nonsense. Nothing gives Psystar the right to use the software in violation of the licensing terms.
See above. They don't need any license to do something that copyright law specifically allows.
Psystar copied OS X files to various duplication servers. Question is if this is an "essential step" to utilizing the software, or if only happened to make life easier for Psystar.
Good point, but on the other hand, one could argue that those intermediate copies are "for archival purposes": collecting information in one place for more convenient access at a later time is one use of an archive.
It reminds me of what mp3.com was busted for. They purchased CDs and then sold copies of pre-made MP3s to customers. Turned out their MP3 archive was one big massive copyright law violation.
Indeed, but I think the legal differences between music and software will work in Psystar's favor here.
Not exactly. Pystar did a few things wrong. They used disk duplication software to install the copies, rather than running the installer from the CD. They did not have a license to make copies in this way.
The owner of a copy of OS X has the legal right to make copies as needed to use it with a computer. How those copies are made is irrelevant: AFAICT, nowhere in copyright law is there any distinction between copying files via an installer, copying them directly from a CD to a hard drive, or copying them to an intermediate buffer and then to a hard drive. You end up with the same bits no matter what.
More importantly, they modified the software to allow booting on other machines and to subvert the automatic update mechanism. They then distributed copies of these derived works.
The same law that grants the right to make necessary copies (17 USC 117) also grants the right to make necessary adaptations -- like Psystar's modified version. It also grants the right to authorize a third party to make those copies or adaptations on your behalf.
If there is a weakness in Psystar's case, it's the possible ambiguity about who owns the copy of OS X at the moment that the adaptation is made. You can adapt software you own, and you can have someone else adapt software you own on your behalf, but if you want to transfer that adaptation when you sell the software, you need the copyright holder's permission.
So the question is, does the customer buy OS X and then have Psystar adapt it, or is Psystar selling an adaptation that they own? Does copying a previously adapted image count as "making an adaptation", or would they have to copy an unmodified image and then patch it?
Either way, it's clear that Psystar is acting within the spirit of the law: copying an unmodified image first and then patching it is slightly less convenient than copying a pre-patched image, but ultimately equivalent. It's somewhat unreasonable to require them to change their patching process when the end result is identical.
Personally, I would love to see it made explicit in copyright law that you can distribute derived works of a copyrighted work as long as you also distribute a legal license for the original (so, for example, you could distribute DVDs along with alternate edits), but there is existing precedent in the US that this is not legal.
Maybe not for movies, but it is legal for software. Not all copyrighted works are treated equally. (Another example: you can't rent out software, even though you can rent out movies.)
What Psystar is doing here is the equivalent of copying the book, slapping on a different cover, and selling it for profit.
No... it's the equivalent of buying a book, slapping on a different cover, and selling it for profit.
It's not like reselling a book, or installing Mac OS X on your personal hackintosh.
On the contrary, that is exactly what it's like. Check your facts. Psystar resells copies of OS X that they purchased; they don't make their own copies. And the same law that gives you the right to install your copy of OS X on your personal hackintosh also gives you the right to authorize someone else (like Psystar) to do it on your behalf.
The current law is the current law, and Apple is legally correct.
No, they aren't. You (and Apple) are ignoring 17 USC 117, which explicitly allows making a copy or adaptation of software in order to run it. It was even mentioned in the summary!
If you believe that the current law is not optimal, that's a matter to take up with the legislature. Arguing that the lawyers and courts are wrong for following the law is downright silly.
They're not following the law. They're following the parts they like and ignoring the parts they don't like.
Actually, wasn't the idea that copying a program from disk to RAM need specific permission, something that was ruled on very long ago?
That may have been the case before 1980, but 17 USC 117 now explicitly allows the owner of a copy of a program to make additional copies or adaptations as needed to run it.
You're the proud owner of a box and its contents, but you lack legal possession of the usage rights, which is 95% of the value.
There's no such thing as "usage rights" regarding a copy of software that you own. 17 USC 117 says you're entitled to make additional copies (i.e. copying it to the hard drive or into RAM) or adaptations (i.e. patching it to work on non-Apple hardware) of that software as needed to run it. There is no software usage right in law, there's only copyright, and copyright law specifically allows this.
Just because the developers of Windows and Linux have chosen to let you run their OS on any x86 machine, doesn't mean you automatically have the right to run any piece of software you like on your machine.
You're right, technically, but 17 USC 117 does mean you automatically have the right to run any piece of software you own on your machine. You don't need permission from the copyright holder to install or run software, or to adapt it to run on your machine; copyright law itself grants you those rights.