If it was possible to "guarantee profit" by setting a sufficiently high price, I could dig up a worthless rock in my yard, sell it for an astronomically high price, and retire. Wouldn't that be nice.
Sorry, I thought the omitted words were clear in context. What I meant, of course, was setting the retail price high enough to guarantee that if they sold a reasonable number of copies, they'd make a profit.
You can't "guarantee profit" for that rock because you don't know if anyone will buy it. What you can do, however, is set a price higher than what it cost you to dig it up, which will guarantee you a profit if you sell it.
Similarly, Apple can set the price for OS X at a level where if they sell N copies, they'll recoup their development costs. If there is no such N because demand drops off too quickly as the price rises, so that at any price they'll still be losing money, then they shouldn't be selling it at all. Point is, the complaint that Apple is losing money on each copy of OS X is bullshit: if they are, it's because they've chosen to do so.
The police knew the protesters were predisposed to ignore warnings and proceed where there were not adequate physical barricades to obstruct them.
Yes, so what? Is that supposed to be an excuse: "the police knew we like to break the law, so they should've just let us do it"?
Look up the legal term "due diligence". The police did not exercise due diligence in preventing the protesters from committing crimes, nor warned them of the consequences.
The police aren't obligated to prevent crime -- well, IANAC, so maybe they are up there, but I doubt it. They certainly don't owe it to potential criminals to stop them from getting themselves in trouble, though.
As for the consequences... what exactly did the protesters think was going to happen when they ignored a warning from police, walked through a barricade, and trespassed on hotel property after being asked to leave? Perhaps they thought they could just shout "king me!" and the PM would have to accept their demands?
That is the very nature of entrapment, no different than manipulating the motivations of a lonely man into hiring a prostitute.
Sorry, but you're wrong. Entrapment is about convincing people to commit a crime they otherwise wouldn't have committed.
It's very different from manipulating someone into hiring a prostitute. No one was manipulated into crossing that barrier or staying on hotel property; in fact, they were told not to do it. That's about as far away from entrapment as you can get.
Either they were giving out gourmet donuts, or it was a deliberate tactic to entrap the protesters into committing crimes.
That word, "entrap", does not mean what you think it means.
The police didn't coerce or persuade any of those protesters to cross the bike line, or trespass on the hotel's property. In fact, as you said yourself, they told the protesters not to. The protesters decided to ignore the "good cops" and enter the hotel anyway, where they were met by the "bad cops". And you're telling us that's somehow the fault of the police? Why, because the cops outside weren't intimidating enough to stop people who were consciously willing to break the law anyway?
Your country is lost. Might as well vote for McCain. No need to drag it out.
Nonsense. The reality is, McCain and Obama have very different policies on a number of significant issues, as do the Democratic and Republican parties in general. The outcome of this election will have a noticeable impact on the lives of millions of people.
This "oh, it doesn't matter, they're all politicians, maaaaaan" attitude has infested Slashdot for too long. Knock it off.
They can't sue YOU, but they can sue Psystar for distributing modified copies, which is not permitted by 17 USC 117.
Yes it is, at least the kind of "distribution" Psystar is doing in this case: physically shipping your modified copy (adaptation) back to you. The adaptation is yours from the moment it's made, since it was made from your original copy of the software.
How do we know it's permitted by 17 USC 117? Because the law says you can authorize the making of a copy or adaptation, i.e. you can ask a third party to make it for you. Obviously they have to be able to give that copy to you once it's been made; otherwise, that section of the law would be meaningless. Distribution only enters into it if you decide to sell or give the modified copy to someone else.
You're claiming that this law, about your rights vis-a-vis ownership of property, allows Psystar to install a derivative work FOR you
Correct. You can authorize them to adapt your copy of that software as an essential step in running it on a computer.
and then you're claiming in the same breath that the second part of the law doesn't apply to Psystar, because it supposedly doesn't apply to you, because you are supposedly already the owner of the equipment and software that Psystar is installing, therefore no "transfer" is taking place, even though Psystar hasn't even shipped either the software or the hardware to you yet.
Correct. The software and hardware isn't physically in your possession at that point, but it's still yours. It becomes yours when you buy it, not when it's delivered to your door. Therefore, the adaptation isn't being transferred to you; it was yours all along.
As I wrote earlier, to interpret "transferred" in 117(b) to refer to physically shipping the adaptation to the customer would be to strip the relevant part of 117(a) of meaning, because any adaptation made by a third party has to be given back to the owner of the original somehow, and therefore that's an unreasonable interpretation - when interpreting a law, you must assume that its authors intended each word to mean something.
The reasonable interpretation is that it refers to transferring ownership or usage rights; i.e. if I've adapted my copy of OS X to run on my PC, I then need Apple's permission if I want to sell the PC with that adapted software still on it.
Nonetheless you have to admit their 'Open Computer' is considerably bigger than Apple's Mac Mini. Of course, at that point it's just an aesthetic choice.
It's not just aesthetic, it's functional, and many customers would prefer a tower for that reason. You can't add a second internal hard drive or optical drive to a Mini (you need an external one, which is slower, more expensive, and not compatible with all software). You can't upgrade the graphics card or add any other PCI cards. If you want a Mac with those capabilities, you have to spend nearly $3000 for the Mac Pro.
I'm not saying small isn't cool, or that the Open Computer is better for everyone than a similarly priced Mac. It's just that there are configurations Apple doesn't offer; if you don't care about saving space but you do want to add a PCI card, the Psystar machine is a much better deal.
That hinges on the definition of "transfer". The definition you're relying on would strip the phrase "authorize the making of another... adaptation" of all meaning, since any adaptation made by a third party has to be given back to the owner of the original copy at some point -- if that "transfer" were to require the copyright holder's permission, then that part of 117(a) would be meaningless. When interpreting the law, we must assume that the authors didn't intend for any part of it to be meaningless.
Therefore, a more reasonable interpretation is that they're talking about transferring ownership of the adaptation, not transferring physical possession. If they were to adapt their own copy of OS X, and then sell the original together with the adaptation, then they'd need the copyright holder's permission. But instead, they're selling a copy of OS X first, and then adapting the copy which is now owned by their customer, with the customer's authorization.
Alas, the same strategy might defeat the GPL, too. Let's say I build boxes (e.g. Tivos) which happen to use some GPL software (e.g. Linux). I acquire a copy of Linux on behalf of my customer, and patch my customer's copy of Linux to work with my box. Then I ship the box to the customer. Since I am just an agent working on behalf of the user, I'm not distributing derived works of Linux, therefore I am working exclusively within copyright law and don't need to take advantage of (or become bound by) the terms of the GPL.
That's a good point, and it'll be interesting to see if anyone starts to do that if Psystar succeeds. The trick is, you have to sell the software before patching it, so you need to handle customer orders directly. This scheme wouldn't be compatible with a retail distribution model like TiVo's, but I think it'd work for some guy selling MythTV boxes out of his garage.
BTW, this case is starting to remind me of some movie-related service that was in the news a few years ago. Someone (in Utah, I think?) was censoring movies so that prudes could get movies with sex/profanity edited out. I wish I remembered how that case was resolved.
IIRC, they lost. But there's a key difference between that case and this one: those were movies, and 17 USC 117 specifically applies to computer software.
Except Psystar is advertising this process as part of a service that comes bundled with THEIR hardware. Not something that they will do for "your" system. [...] It is _not_ YOUR disc. It is the disc they are SELLING you as part of a PACKAGE, which also includes a hacked installation on a hard drive.
And what happens after they sell you the disc? It becomes yours, of course. As soon as it becomes yours, you can authorize them to copy or adapt it to run on the computer you just bought from them.
You seem to think the product doesn't become yours until it's physically shipped to you. That's not the case; you can own things that aren't in your possession yet, and that means you can authorize them to copy your software onto your computer before they ship it to you.
They're a business that has done no innovation, whose product breaks several license agreements and violates copyright law and countless patents, and who doesn't even have a stable home address. Why in the world are you defending their business model?
First, because you're wrong about their legal status -- as I've explained, there's a pretty solid legal justification for what they're doing. Second, because they're providing a product and service that's valuable, regardless of its legality: they offer more configurations and better prices than Apple, and that would still be true even if Apple started charging $500 per copy of OS X.
I seriously doubt that Psystar can show that they have authorisation to copy MacOS X from any of their customers.
Why do you doubt that? It's a check box on the order form. If you ask them to preinstall your copy of OS X, that's the authorization.
And if you had bought a Psystar computer with MacOS X installed, and Psystar would ask you to confirm that they installed MacOS X on your behalf, would you do that and risk being sued for copyright infringement?
The law says it's not an infringement. I suppose Apple could still file a lawsuit, which they'd lose, but technically anyone can sue you for anything at any time anyway.
You'd then still be perfectly within your rights to do with the software what you pleased. However, if you decided to then sell or give your software to someone, you'd be redistributing an unlicensed derivative of a copyrighted work.
That's true if you adapt it first and sell it later, but not if someone authorizes you to make them a copy or adaptation of the software they own. Even if the copy they own is the copy you sold them earlier that day.
But all these things require that you have used that copy according to the terms of the license.
No, look at the text of the law: it refers to "the owner of a copy of a computer program". Once you buy the disc, you own a copy, and therefore you can authorize Psystar to copy or adapt it. You don't have to agree to any license unless you want the rights that the license grants.
PsyStar runs afoul of copyright law because they are selling a copy and an original (the DVD plus the HDD) without the license to do so.
What they're doing is this:
1. Selling the original to the customer, as allowed by the first sale doctrine. 2. Copying the original onto the customer's hard drive, with his authorization (since he owns that copy now), as allowed by 17 USC 117. 3. Adapting the original to run on the customer's computer, again with his authorization, as allowed by 17 USC 117.
They'd probably still bundle it in with their Macs. They don't have to over-price it for their own hardware, genius.
Yes, of course they'd still bundle it in with their Macs. That's why I didn't adjust the prices of the Macs. I pulled those numbers straight from Apple's web site.
Today, Psystar's machine costs $555, which includes the price of the OS ($130), and it's still over $200 cheaper than the basic 2 GHz Mac Mini. The point of my comment was that even if you add another $370 to Psystar's price, without increasing Apple's price, it's still a pretty good deal.
You've glossed over an important point. Psystar doesn't just copy the disc onto the computer for you, they copy the software off, and then apply the equivalent of a crack-patch, decrypting and/or replacing multiple segments of it so that it can run on their hardware.
It's not just "the disc"; it's your disc. You are authorizing them to copy and adapt the software.
If they just shipped a blank hard drive, a shrink-wrapped retail OS X box, and an instruction pamphlet pointing users to the osx86 project, there would be absolutely nothing to see here.
All they're doing is taking it one step further: they install that software on your computer and follow those instructions, doing exactly what you could do, on your behalf, with your authorization, which is just what 17 USC 117(a) says you can authorize them to do.
Psystar is making an adaptation, not a copy. They do not have permission from the copyright owner to do so.
They don't need it.
The second sentence of section (b) doesn't apply to this situation, because they aren't leasing, selling, or otherwise transferring ownership of the adaptation to the customer. It was the customer's adaptation all along, since it came from the original copy of OS X that he just purchased, and he authorized them to make it on his behalf.
The fact that section (a) allows the owner of a copy to authorize someone else to make an adaptation is enough to show that section (b) doesn't apply here -- if it did, every such adaptation would need the copyright holder's permission before the third party could give it back, rendering that part of section (a) entirely meaningless.
You agreed to their contract by installing the software. If you say No I reject your EULA when installing the software you are kicked out of the software.
Unless you patch the installer so it doesn't require you to agree to the terms, or write your own installer, or find some alternate way to copy the software to your hard drive without agreeing to the EULA.
And yet you lack the right to authorize Pystar to violate the terms of the licensing agreement on retail boxes of Mac OS X
What makes you think they agreed to those terms?
You only need to accept a license agreement if you want the license. If you don't want it -- say, because the law already allows you to make a copy -- then you don't need to accept it.
so Pystar has no legal authorization to [...] sell the software as a value add for their hardware.
Heh. I guess you haven't heard of the first sale doctrine. They can resell whatever they want.
1. You can make copies of stuff you own, as long as it's for archival purposes, or you need to do so to use it (e.g. copying software from DVD to USB key to install on a machine with no DVD drive)
Yes, this is the relevant part. Copying the OS to your hard drive is an essential step in using it; therefore it's not an infringement to copy it to your hard drive. (Similarly, it's not an infringement to copy it from the hard drive into RAM, because you can't run it unless it's in RAM.)
I don't see anything there that invalidates EULAs.
I didn't say it invalidated the EULA. What I said is you can reject the EULA and rely on your statutory rights instead of a license granted by Apple.
The "LA" in EULA is for "license agreement". A license agreement is a contract where you agree to certain terms, and in exchange you get a license to do something. If you don't agree to the terms, you don't get that license. But in this case, you don't need that license, because the law already allows you to make the only copy you need to make.
Think of it this way: if you declined the license, and installed OS X on your hard drive, what could Apple sue you for? Breach of contract? No, because you never agreed to their contract. Copyright infringement? No, because 17 USC 117 says the copy on your hard drive isn't infringing, because it's essential to running the software.
(IANAL either, so if an L wants to show up and set this whole thing straight...)
Except that at $500, that'll double the price of the $500 machine the slashbots want to buy. And I doubt Apple will cut any sort of deal.
Tell me how this makes sense.
Well, Psystar's $555 Open Computer already includes the price of the OS, so let's say Apple raises the OS price to $500 - that would bring the cost of the basic Open Computer to around $925.
Now let's see, what kind of Mac can you get for $925? Certainly not the Mac Pro ($2800), or even the iMac ($1200). You can get the 2 GHz Mac mini ($800), and upgrade it to 2 GB of RAM and a 160 GB hard drive for a total of $950.
So, for $25 less, the basic Open Computer still has over 50% more hard drive space (250 vs. 160 GB) and better graphics (GeForce 7200GS vs. Intel integrated graphics).
And oh yeah, it's a full-sized desktop PC, so you have room to expand. It's available with faster processors, extra drives, bigger drives, and a GeForce 8600, and even with a higher OS price it'd still be much cheaper than a similarly expandable Mac. Make sense yet?
The Lexmark case is really difficult to apply, because in that question the only purpose of the software in question was to restrict access; it served no purpose but to activate the hardware. That was the basis of the judgement: since the software was necessary to make the cartridge function, it was not copyrightable and duplicating it was not a "circumvention." Since there are other ways to make Pystar's hardware functional (eg. install Windows or Linux on it) that argument doesn't apply in this case.
No, I think you've misunderstood the Lexmark case.
You're right that there was a different program that served only as a key, and thus was uncopyrightable, but that wasn't the only software involved, and in any case it wasn't the hardware that was being access-controlled. The DMCA is concerned with technical measures that control access to copyrightable works, not hardware.
Lexmark claimed that the third-party toner cartridges circumvented the access control on Lexmark's printer control software - the "Printer Engine Program", which was indeed copyrightable. The court, however, found that the PEP was already accessible to every owner of the printer. The third-party toner didn't circumvent that access control, because the owner already gained access the moment he bought the printer.
Similarly, when you buy a disc containing data, you gain access to that data simply by owning it. It's recorded on an object you own in a form you can read, just like the PEP was stored on a chip inside the printer and could be read by anyone who had the right tools. (The DMCA does cover DVD encryption, because the movie isn't accessible to everyone who owns a copy of the encrypted data.)
Which is all well and good for the boxed copy that Pystar ships, but not for the cracked copy that they preinstall. Legally, the included shrink-wrapped copy and the on-disk cracked copy are two separate issues.
17 USC 117 says you don't have to make the copy yourself; you can authorize someone else to make a copy. If I buy a computer and an OS from someone else, I can either wait for them to arrive and copy it myself, or I can authorize them to copy it before they ship it to me (since I own it as soon as I've paid for it).
Because if you're forcing them to let you undermine their hardware sales, then you're going to PAY for development and PAY to have your hardware supported.
Absolutely. If Apple is going to sell copies of OS X, they should charge whatever price is necessary to cover the cost of developing it. That way, competitors can offer a better deal on hardware, and Apple can still turn a profit on the product people want -- the software.
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If it was possible to "guarantee profit" by setting a sufficiently high price, I could dig up a worthless rock in my yard, sell it for an astronomically high price, and retire. Wouldn't that be nice.
Sorry, I thought the omitted words were clear in context. What I meant, of course, was setting the retail price high enough to guarantee that if they sold a reasonable number of copies, they'd make a profit.
You can't "guarantee profit" for that rock because you don't know if anyone will buy it. What you can do, however, is set a price higher than what it cost you to dig it up, which will guarantee you a profit if you sell it.
Similarly, Apple can set the price for OS X at a level where if they sell N copies, they'll recoup their development costs. If there is no such N because demand drops off too quickly as the price rises, so that at any price they'll still be losing money, then they shouldn't be selling it at all. Point is, the complaint that Apple is losing money on each copy of OS X is bullshit: if they are, it's because they've chosen to do so.
The police knew the protesters were predisposed to ignore warnings and proceed where there were not adequate physical barricades to obstruct them.
Yes, so what? Is that supposed to be an excuse: "the police knew we like to break the law, so they should've just let us do it"?
Look up the legal term "due diligence". The police did not exercise due diligence in preventing the protesters from committing crimes, nor warned them of the consequences.
The police aren't obligated to prevent crime -- well, IANAC, so maybe they are up there, but I doubt it. They certainly don't owe it to potential criminals to stop them from getting themselves in trouble, though.
As for the consequences... what exactly did the protesters think was going to happen when they ignored a warning from police, walked through a barricade, and trespassed on hotel property after being asked to leave? Perhaps they thought they could just shout "king me!" and the PM would have to accept their demands?
That is the very nature of entrapment, no different than manipulating the motivations of a lonely man into hiring a prostitute.
Sorry, but you're wrong. Entrapment is about convincing people to commit a crime they otherwise wouldn't have committed.
It's very different from manipulating someone into hiring a prostitute. No one was manipulated into crossing that barrier or staying on hotel property; in fact, they were told not to do it. That's about as far away from entrapment as you can get.
Either they were giving out gourmet donuts, or it was a deliberate tactic to entrap the protesters into committing crimes.
That word, "entrap", does not mean what you think it means.
The police didn't coerce or persuade any of those protesters to cross the bike line, or trespass on the hotel's property. In fact, as you said yourself, they told the protesters not to. The protesters decided to ignore the "good cops" and enter the hotel anyway, where they were met by the "bad cops". And you're telling us that's somehow the fault of the police? Why, because the cops outside weren't intimidating enough to stop people who were consciously willing to break the law anyway?
Your country is lost. Might as well vote for McCain. No need to drag it out.
Nonsense. The reality is, McCain and Obama have very different policies on a number of significant issues, as do the Democratic and Republican parties in general. The outcome of this election will have a noticeable impact on the lives of millions of people.
This "oh, it doesn't matter, they're all politicians, maaaaaan" attitude has infested Slashdot for too long. Knock it off.
They can't sue YOU, but they can sue Psystar for distributing modified copies, which is not permitted by 17 USC 117.
Yes it is, at least the kind of "distribution" Psystar is doing in this case: physically shipping your modified copy (adaptation) back to you. The adaptation is yours from the moment it's made, since it was made from your original copy of the software.
How do we know it's permitted by 17 USC 117? Because the law says you can authorize the making of a copy or adaptation, i.e. you can ask a third party to make it for you. Obviously they have to be able to give that copy to you once it's been made; otherwise, that section of the law would be meaningless. Distribution only enters into it if you decide to sell or give the modified copy to someone else.
XYZZY appeared in Colossal Cave before Zork, but Spacewar had teleportation (hyperspace) over a decade earlier.
Yes, that's exactly what I meant! Good job, you win at Slashdot.
You're claiming that this law, about your rights vis-a-vis ownership of property, allows Psystar to install a derivative work FOR you
Correct. You can authorize them to adapt your copy of that software as an essential step in running it on a computer.
and then you're claiming in the same breath that the second part of the law doesn't apply to Psystar, because it supposedly doesn't apply to you, because you are supposedly already the owner of the equipment and software that Psystar is installing, therefore no "transfer" is taking place, even though Psystar hasn't even shipped either the software or the hardware to you yet.
Correct. The software and hardware isn't physically in your possession at that point, but it's still yours. It becomes yours when you buy it, not when it's delivered to your door. Therefore, the adaptation isn't being transferred to you; it was yours all along.
As I wrote earlier, to interpret "transferred" in 117(b) to refer to physically shipping the adaptation to the customer would be to strip the relevant part of 117(a) of meaning, because any adaptation made by a third party has to be given back to the owner of the original somehow, and therefore that's an unreasonable interpretation - when interpreting a law, you must assume that its authors intended each word to mean something.
The reasonable interpretation is that it refers to transferring ownership or usage rights; i.e. if I've adapted my copy of OS X to run on my PC, I then need Apple's permission if I want to sell the PC with that adapted software still on it.
That's pretzel logic and won't stand up in court.
Incorrect. See above.
Nonetheless you have to admit their 'Open Computer' is considerably bigger than Apple's Mac Mini. Of course, at that point it's just an aesthetic choice.
It's not just aesthetic, it's functional, and many customers would prefer a tower for that reason. You can't add a second internal hard drive or optical drive to a Mini (you need an external one, which is slower, more expensive, and not compatible with all software). You can't upgrade the graphics card or add any other PCI cards. If you want a Mac with those capabilities, you have to spend nearly $3000 for the Mac Pro.
I'm not saying small isn't cool, or that the Open Computer is better for everyone than a similarly priced Mac. It's just that there are configurations Apple doesn't offer; if you don't care about saving space but you do want to add a PCI card, the Psystar machine is a much better deal.
That hinges on the definition of "transfer". The definition you're relying on would strip the phrase "authorize the making of another ... adaptation" of all meaning, since any adaptation made by a third party has to be given back to the owner of the original copy at some point -- if that "transfer" were to require the copyright holder's permission, then that part of 117(a) would be meaningless. When interpreting the law, we must assume that the authors didn't intend for any part of it to be meaningless.
Therefore, a more reasonable interpretation is that they're talking about transferring ownership of the adaptation, not transferring physical possession. If they were to adapt their own copy of OS X, and then sell the original together with the adaptation, then they'd need the copyright holder's permission. But instead, they're selling a copy of OS X first, and then adapting the copy which is now owned by their customer, with the customer's authorization.
Alas, the same strategy might defeat the GPL, too. Let's say I build boxes (e.g. Tivos) which happen to use some GPL software (e.g. Linux). I acquire a copy of Linux on behalf of my customer, and patch my customer's copy of Linux to work with my box. Then I ship the box to the customer. Since I am just an agent working on behalf of the user, I'm not distributing derived works of Linux, therefore I am working exclusively within copyright law and don't need to take advantage of (or become bound by) the terms of the GPL.
That's a good point, and it'll be interesting to see if anyone starts to do that if Psystar succeeds. The trick is, you have to sell the software before patching it, so you need to handle customer orders directly. This scheme wouldn't be compatible with a retail distribution model like TiVo's, but I think it'd work for some guy selling MythTV boxes out of his garage.
BTW, this case is starting to remind me of some movie-related service that was in the news a few years ago. Someone (in Utah, I think?) was censoring movies so that prudes could get movies with sex/profanity edited out. I wish I remembered how that case was resolved.
IIRC, they lost. But there's a key difference between that case and this one: those were movies, and 17 USC 117 specifically applies to computer software.
Except Psystar is advertising this process as part of a service that comes bundled with THEIR hardware. Not something that they will do for "your" system. [...] It is _not_ YOUR disc. It is the disc they are SELLING you as part of a PACKAGE, which also includes a hacked installation on a hard drive.
And what happens after they sell you the disc? It becomes yours, of course. As soon as it becomes yours, you can authorize them to copy or adapt it to run on the computer you just bought from them.
You seem to think the product doesn't become yours until it's physically shipped to you. That's not the case; you can own things that aren't in your possession yet, and that means you can authorize them to copy your software onto your computer before they ship it to you.
They're a business that has done no innovation, whose product breaks several license agreements and violates copyright law and countless patents, and who doesn't even have a stable home address. Why in the world are you defending their business model?
First, because you're wrong about their legal status -- as I've explained, there's a pretty solid legal justification for what they're doing. Second, because they're providing a product and service that's valuable, regardless of its legality: they offer more configurations and better prices than Apple, and that would still be true even if Apple started charging $500 per copy of OS X.
I seriously doubt that Psystar can show that they have authorisation to copy MacOS X from any of their customers.
Why do you doubt that? It's a check box on the order form. If you ask them to preinstall your copy of OS X, that's the authorization.
And if you had bought a Psystar computer with MacOS X installed, and Psystar would ask you to confirm that they installed MacOS X on your behalf, would you do that and risk being sued for copyright infringement?
The law says it's not an infringement. I suppose Apple could still file a lawsuit, which they'd lose, but technically anyone can sue you for anything at any time anyway.
You'd then still be perfectly within your rights to do with the software what you pleased. However, if you decided to then sell or give your software to someone, you'd be redistributing an unlicensed derivative of a copyrighted work.
That's true if you adapt it first and sell it later, but not if someone authorizes you to make them a copy or adaptation of the software they own. Even if the copy they own is the copy you sold them earlier that day.
But all these things require that you have used that copy according to the terms of the license.
No, look at the text of the law: it refers to "the owner of a copy of a computer program". Once you buy the disc, you own a copy, and therefore you can authorize Psystar to copy or adapt it. You don't have to agree to any license unless you want the rights that the license grants.
PsyStar runs afoul of copyright law because they are selling a copy and an original (the DVD plus the HDD) without the license to do so.
What they're doing is this:
1. Selling the original to the customer, as allowed by the first sale doctrine.
2. Copying the original onto the customer's hard drive, with his authorization (since he owns that copy now), as allowed by 17 USC 117.
3. Adapting the original to run on the customer's computer, again with his authorization, as allowed by 17 USC 117.
They'd probably still bundle it in with their Macs. They don't have to over-price it for their own hardware, genius.
Yes, of course they'd still bundle it in with their Macs. That's why I didn't adjust the prices of the Macs. I pulled those numbers straight from Apple's web site.
Today, Psystar's machine costs $555, which includes the price of the OS ($130), and it's still over $200 cheaper than the basic 2 GHz Mac Mini. The point of my comment was that even if you add another $370 to Psystar's price, without increasing Apple's price, it's still a pretty good deal.
You've glossed over an important point. Psystar doesn't just copy the disc onto the computer for you, they copy the software off, and then apply the equivalent of a crack-patch, decrypting and/or replacing multiple segments of it so that it can run on their hardware.
It's not just "the disc"; it's your disc. You are authorizing them to copy and adapt the software.
If they just shipped a blank hard drive, a shrink-wrapped retail OS X box, and an instruction pamphlet pointing users to the osx86 project, there would be absolutely nothing to see here.
All they're doing is taking it one step further: they install that software on your computer and follow those instructions, doing exactly what you could do, on your behalf, with your authorization, which is just what 17 USC 117(a) says you can authorize them to do.
Psystar is making an adaptation, not a copy. They do not have permission from the copyright owner to do so.
They don't need it.
The second sentence of section (b) doesn't apply to this situation, because they aren't leasing, selling, or otherwise transferring ownership of the adaptation to the customer. It was the customer's adaptation all along, since it came from the original copy of OS X that he just purchased, and he authorized them to make it on his behalf.
The fact that section (a) allows the owner of a copy to authorize someone else to make an adaptation is enough to show that section (b) doesn't apply here -- if it did, every such adaptation would need the copyright holder's permission before the third party could give it back, rendering that part of section (a) entirely meaningless.
You agreed to their contract by installing the software. If you say No I reject your EULA when installing the software you are kicked out of the software.
Unless you patch the installer so it doesn't require you to agree to the terms, or write your own installer, or find some alternate way to copy the software to your hard drive without agreeing to the EULA.
And yet you lack the right to authorize Pystar to violate the terms of the licensing agreement on retail boxes of Mac OS X
What makes you think they agreed to those terms?
You only need to accept a license agreement if you want the license. If you don't want it -- say, because the law already allows you to make a copy -- then you don't need to accept it.
so Pystar has no legal authorization to [...] sell the software as a value add for their hardware.
Heh. I guess you haven't heard of the first sale doctrine. They can resell whatever they want.
1. You can make copies of stuff you own, as long as it's for archival purposes, or you need to do so to use it (e.g. copying software from DVD to USB key to install on a machine with no DVD drive)
Yes, this is the relevant part. Copying the OS to your hard drive is an essential step in using it; therefore it's not an infringement to copy it to your hard drive. (Similarly, it's not an infringement to copy it from the hard drive into RAM, because you can't run it unless it's in RAM.)
I don't see anything there that invalidates EULAs.
I didn't say it invalidated the EULA. What I said is you can reject the EULA and rely on your statutory rights instead of a license granted by Apple.
The "LA" in EULA is for "license agreement". A license agreement is a contract where you agree to certain terms, and in exchange you get a license to do something. If you don't agree to the terms, you don't get that license. But in this case, you don't need that license, because the law already allows you to make the only copy you need to make.
Think of it this way: if you declined the license, and installed OS X on your hard drive, what could Apple sue you for? Breach of contract? No, because you never agreed to their contract. Copyright infringement? No, because 17 USC 117 says the copy on your hard drive isn't infringing, because it's essential to running the software.
(IANAL either, so if an L wants to show up and set this whole thing straight...)
Except that at $500, that'll double the price of the $500 machine the slashbots want to buy. And I doubt Apple will cut any sort of deal.
Tell me how this makes sense.
Well, Psystar's $555 Open Computer already includes the price of the OS, so let's say Apple raises the OS price to $500 - that would bring the cost of the basic Open Computer to around $925.
Now let's see, what kind of Mac can you get for $925? Certainly not the Mac Pro ($2800), or even the iMac ($1200). You can get the 2 GHz Mac mini ($800), and upgrade it to 2 GB of RAM and a 160 GB hard drive for a total of $950.
So, for $25 less, the basic Open Computer still has over 50% more hard drive space (250 vs. 160 GB) and better graphics (GeForce 7200GS vs. Intel integrated graphics).
And oh yeah, it's a full-sized desktop PC, so you have room to expand. It's available with faster processors, extra drives, bigger drives, and a GeForce 8600, and even with a higher OS price it'd still be much cheaper than a similarly expandable Mac. Make sense yet?
The Lexmark case is really difficult to apply, because in that question the only purpose of the software in question was to restrict access; it served no purpose but to activate the hardware. That was the basis of the judgement: since the software was necessary to make the cartridge function, it was not copyrightable and duplicating it was not a "circumvention." Since there are other ways to make Pystar's hardware functional (eg. install Windows or Linux on it) that argument doesn't apply in this case.
No, I think you've misunderstood the Lexmark case.
You're right that there was a different program that served only as a key, and thus was uncopyrightable, but that wasn't the only software involved, and in any case it wasn't the hardware that was being access-controlled. The DMCA is concerned with technical measures that control access to copyrightable works, not hardware.
Lexmark claimed that the third-party toner cartridges circumvented the access control on Lexmark's printer control software - the "Printer Engine Program", which was indeed copyrightable. The court, however, found that the PEP was already accessible to every owner of the printer. The third-party toner didn't circumvent that access control, because the owner already gained access the moment he bought the printer.
Similarly, when you buy a disc containing data, you gain access to that data simply by owning it. It's recorded on an object you own in a form you can read, just like the PEP was stored on a chip inside the printer and could be read by anyone who had the right tools. (The DMCA does cover DVD encryption, because the movie isn't accessible to everyone who owns a copy of the encrypted data.)
Which is all well and good for the boxed copy that Pystar ships, but not for the cracked copy that they preinstall. Legally, the included shrink-wrapped copy and the on-disk cracked copy are two separate issues.
17 USC 117 says you don't have to make the copy yourself; you can authorize someone else to make a copy. If I buy a computer and an OS from someone else, I can either wait for them to arrive and copy it myself, or I can authorize them to copy it before they ship it to me (since I own it as soon as I've paid for it).
Because if you're forcing them to let you undermine their hardware sales, then you're going to PAY for development and PAY to have your hardware supported.
Absolutely. If Apple is going to sell copies of OS X, they should charge whatever price is necessary to cover the cost of developing it. That way, competitors can offer a better deal on hardware, and Apple can still turn a profit on the product people want -- the software.