No, you don't. The analysis was split, as I've said, for judges and jurisdictions that follow Leff's analysis. It is not binding, certainly not in California, and not most other places. You have provided no citation for your bizarre insistence on turning categorical factors into elements.
Perhaps you haven't gotten that far in law school yet.
See that phrase "without negotiation"? Why are you considering that to be a substantive issue?
Because it goes to the surprise--if it is point out to you, even if it is not negotiated, it's permissible. If it is hidden in a contract where one does not expect it, it bolsters a finding of unconscionability.
It's not the procedure of negotiation that's important, but rather, the disclosure of terms--without negotiation or notice, there is a failure of mutual assent.
and you're getting them confused in a silly effort to find all adhesion contracts invalid.
No. You're getting confused in some weird alternate reality that has spanned days now. I have made no statement about the validity of adhesive contracts--most of them are valid, and my prior posts on Slashdot have backed that up.
It's your lack of precision that seems to be tripping you up.
rather than just complaining that I used the Pacific Reporter (which is capitalized).
Pacific Reporter is capitalized. This, however, is what I was talking about: "they're coming from different Reporters." The correct phrase is 'they're coming from different reporters'. See the difference? If that's not a complete summation of exactly your problem, I don't know what is. You're just not paying attention, and you're taking exception to things you assume, without paying attention to the structure or context of the argument, which has lead to this moronic objection of yours.
Binding arbitration clauses have been upheld by SCOTUS in Shute and others
No. In Shute, it was a forum selection clause. The arbitration was optional. Shute, furthermore, was explicitly couched in the lowering of ticket prices as a result of only needing to handle disputes in one location--a significant administrative cost for an international cruise line and a reasonable desire not to be haled into courts of dozens of different nations. It is also worth noting that because Shute did not, in fact, offer any analysis of the lower fares, it is not commonly followed on that point, but more on its findings of commercial reasonableness. Further, I have never stated that it was impossible to insert a binding arbitration clause in these agreements. Perhaps you should go back to the very beginning: I said they were disfavored, and subject to a much higher level of scrutiny. You have yet to provide any contrary authority.
. I've given you four cites.
No. You've given cases, and a mistaken understanding of each of them. None of them supports your finding of elemental procedural + substantive unconscionability, and none of them contests my original assertion that they are disfavored in rental, employment, and service agreements as abuses of unequal bargaining power.
On the other hand, I've already given you the complete Walker-Thomas rule, pointed you toward Industrialease, and corrected your use of at least three of your four citations.
If that's not enough, though, consider Roberts v. Smith Barney, 653 F. Supp. 406 (1986). (Unconscionability in binding arbitration with adhesive contracts occurs where there is a lack of choice or notice and terms are unreasonably favorable to one party).
See also David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd., 923 F.2d 245 (1991): "For an arbitration provision to be stricken as a contract of adhesion there must be a showing of " 'un
You can be pissed all you want that homeschooling is more successful than public schools at giving kids a good education
That's far from the truth.
There are certainly many success stories from homeschooling, but consider the inputs: those kids are motivated students from generally affluent families whose parents are themselves sufficiently sophisticated to prepare a curriculum. There was never really any doubt about the success of their education. The benefit comes from individual attention and self-pacing, which isn't a benefit of homeschooling but rather of class sizes you and your crackpot instruction.
For every "success", there's a sadly manipulated child as well as a total failure to go along with him. Saying that homeschooling is the answer is disingenuous at best. Few parents are sufficiently skilled or knowledgeable to complete an entire primary and secondary education.
If they are as good as they claim at educating, they should be able to write a decent text book.
Spoken like someone who truly fails to understand what a teacher is for. Educating isn't simply feeding data. Being able to write a textbook is an entirely different skill from being able to help students apply that information. You don't ask the race car driver to build the car. Even being an expert in a particular field does not mean you can write an effective textbook about it.
Just look at all the professors who are brilliant theorists and scholars but terrible instructors.
Actually, it's the fault of the 47 states that existed at the time (and ultimately the brand-new 48th state, Arizona) and the 61st and 62nd Congresses, if I'm doing the math right.
Taft was elected in the first place because of his "progressive" take on fiscal policies, including his support for the Democratic proposal to create an income tax. Taft, of course, had no direct authority regarding the amendment.
Which is exactly what I said. Reading comprehension isn't your strong suit, is it.
Actually, it seems yours is the issue again. I haven't been saying anything different from the beginning, but at least three times now you're drawing a distinction where none exists.
There is no need to quantify procedural/substantive unconscionability, unless your only familiarity with it is as a law student working out of some horseshit secondary source. You don't need both, and since the procedural element is not a concern, your bizarre insistence on repeating the "you need both" pile of manure is misplaced at best. The two steps are factors, not elements, and as I've been saying all along, the adhesive contract would fill any judge's desire to find procedural unconscionability, rendering it moot. The substantive issue, the waiver of rights without negotiation, is the operative portion.
The simple fact remains that binding arbitration clauses are disfavored in agreements in rental contracts, employment contracts, and service agreements because they are unilateral imposition of surprising terms that remove rights one does not expect to surrender in the course of bargaining.
That is not to say that binding agreements must be unconscionable or that they can never be included in an agreement.
Yes, Sparky, an adhesionary contract is procedurally unconscionable
Not necessarily.
It satisfies the procedural factor for courts inclined to look for one in ruling on the presence of unconscionability. That does not make adhesive contracts unconscionable.
You don't think the Pacific Reporters are good cites?
Nope. They're parallel cites. Always use the official reporters when giving authority, or at the very least be consistent. Rookie mistake.
While you're flapping about, here are a few other tips: rhetorical questions still end in question marks ("Is it."), 'reporter' is not a proper noun and should not be arbitrarily capitalized, and continuations of thoughts on the other side of ellipses are not capitalized because they're not new sentences ("what... Take").
The first one was adhesionary, but that's not what made it invalid.
No shit.
Here's what you don't seem to be able to grasp about the process.
1. A binding arbitration clause in an adhesive contract is presumptively biased in favor of the Offeror. 2. Adhesive contracts ipso facto satisfy procedural unconscionability where the term in question is not essential to the benefit of the bargain. 3. Where the arbitration clause was not highlighted as a feature of an agreement, it constitutes surprise. 4. Where an arbitration clause unilaterally strips the Offeree of a right to contest the contract by waiving the right to file suit or to have access to an impartial forum to hear grievances, they are generally viewed as unconscionable, per the Walker-Thomas rule: "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party [and characterized by] a gross inequality of bargaining power." 350 F. 2d 445, 449 (1965).
What made it unconscionable was that the mandatory arbitration provision specified Scissor-Tail's board of directors as the arbitrators.
That would be the lack of benefit. Lower prices weren't a benefit--they were an excuse.
Offering arbitration and capping damages are ways to cut costs. Offering arbitration that is neither fair nor impartial does not cut costs, though. It cuts costs for the seller, while effectively eliminating any right to contest of the buyer.
Again, what you've missed is that in order for a contract to be invalid for unconscionability, there needs to be both procedural and substantive issues. Just procedural unconscionability alone, such as an adhesionary contract with perfectly reasonable binding arbitration, is not invalid.
What you're continuing to miss is that I never said otherwise.
The "inconsistent citation format" is because they're coming from different Reporters.
That's what's inconsistent. You should always use the official reporter for your citations. Had you actually used Westlaw, you would have come up with 28 Cal.3d 807 and 24 Cal 4th 83.
Perhaps when you actually graduate from law school, you'll be able to synthesize properly instead of taking on imagined slights. Were you actually a lawyer, these things might have been more clear. An adhesive contract is all you need for the procedural "element", if you are going to follow Leff and try to find both, when in fact, either can satisfy the gravamen for unconscionability, and attempts to shoehorn both result in a vacuous analysis, as in Industrialease.
You seem to be saying exactly what I am saying, taking exception with regard to some fabricated version of reality.
Consider Armendariz (your inconsistent citation format and examples plainly indicate your use of Wikipedia for examples, and really poor use of them, at that)--an employment case finding an unconscionable contract of adhesion due to the unequal bargaining power.
Consider also your own use of Graham v. Scissor-Tail, Inc., where the unequal bargaining power and lack of any reasonable benefit to the Offeree made the clause unconscionable.
Nothing you have said contradicts anything I have said.
Binding arbitration clauses can be fine, even in adhesionary contracts, and the court even mentions this:
No. The court mentions that there is nothing wrong with arbitration. Binding arbitration, where the right to bring suit is summarily waived, is and has been subject to the court's disdain for quite a while.
Any situation in which forced arbitration is a non-negotiated requirement of an agreement, which tends to disproportionately favor one side over the other, is evaluated quite carefully.
There is nothing wrong with arbitration. Courts love it when parties go to mediation and arbitration, because it gets them out of their hair. On the other hand, when it is loaded into an adhesive contract and puts the Offeree in a situation where they have lost their right to take action without having any foreseeable benefit to doing so. This is especially true in certain classes of agreements, like rental agreements, employment contracts, and service agreements, like we have here.
There's a whole litany of cases on the subject. These types of agreements utilize the unequal bargaining power to enact an unconscionable waiver of rights.
So, again, this decision does not say all arbitration clauses are unconscionable, and even goes out of its way to say they could be fine... but only "could" be fine - the issue is what other clauses are present.
Arbitration clause != binding arbitration clause without option to bring suit. As I've already said, both in this post and the earlier one, preserving arbitration as an option is important, but forcing it in a non-negotiated contract is very commonly unconscionable and has been part of the consumer rights movement of the past decade.
These arbitration clauses are also widely-overturned. This is hardly news--courts have been striking them down left and right for a decade now. Binding arbitration agreements are among the most common provisions stricken from agreements, including EULAs (in fact, it's the most common violation stricken down in software licenses).
The basic premise is that choosing ADR should be preserved as an option, but waiving your rights to contest actions in order to get service is wrong. It is. It has little to do with class actions--it's about litigating your individual grievances with the company.
Contrary to the editorializing in the summary, however, it has nothing to do with anything other than the fact that binding arbitration is disfavored as a lopsided provision offering no advantage to the customer.
That's the point. OP was engaging in what is called a rhetorical style in conveying his narrative tale.
More troubling than your failure to grasp that, though, is that damned buggy-whip example. Is it a shibboleth for some underground Slashdot group? Because it's not like there was ever a large buggy-whip industry in the first place. As a tale of adaptation, it's lacking. And somehow, no one uses it to talk about American programmers adapting to outsourcing by finding another job or lowering their salary expectations. I guess it only works one way.
An anomalous decision based on a doctrine of utility and an ancient case fearing the locking-up of communication. The concern is rooted in the pre-digital age when typefaces were far more limited in number. Subsequent case law has been treading deeper into protection of the creative aspects of typeface design, particularly in light of counterexamples in Europe--copyright protection there has increased the competitive marketplace for typefaces and has resulted in no such "lockdown" on information, as the preexisting set of typefaces remains free and open to use, and all works produced on validly licensed fonts are free to use. Further, any infringement is incumbent on the producer, and avoidance is simply the use of one of the public domain, free, or purchased fonts the producer has lawful use of.
Not all typefaces would be copyrightable under the Merger Doctrine anyway, even ignoring the hundreds of typefaces ineligible for protection from the outset. Commercial typefaces can be improved through copyright protection, giving US artists an ability to compete on the international stage.
This of course, brings us to the greater point: the United States is obliged to honor the European copyrights on typefaces as a signatory to the Berne Convention. Thus, many fonts are afforded copyright protection. It's simply that due to a quirk in our Copyright Act (which we are technically obliged to change to harmonize with Europe due to international IP agreements) and an old SCOTUS decision, the typeface itself is not copyrightable here. Other means of economic protection are, however, available independent of copyright, and are used for some of the high-end typefaces and packages.
Copyright on typefaces would actually stir competition and make more fonts available freely (as in money), while continuing to permit the design and copyright-free release of typefaces to those who wish to do so. It would also eliminate a US-only oddity.
The concern about copyright on typefaces is intuitively appealing, but in practice is not a true concern. In fact, the scope of protection is so narrow that any form of independent creation without direct reproduction counts as a new typeface, so there can never be an impenetrable thicket.
It's clear you're not a practitioner (maybe a law student?),
Humorous, but plainly wrong.
It's your spotty writing and analysis that invites such a statement. You've plainly ignored the general rules of interpretation and construction, the issues of fact and context marked by clear statements and differences in scope, as well as the further development of case law.
You've further ignored the application of the Rule of Reason, the razor blades business model, the case law on lock-in, the fundamental differences between force and desirability (the availability of a particular desirable feature is the very core of competition, and conflating desirability with force is a hilarious full-360), and even the quotes you provide fall far short of supporting your proposition.
If you have read through Holmes, you would see even more issues presented that are problematic for Psystar. You might consider a Sonora argument as well as the six or seven others presented: the economic interest only extends to the Macintosh component--there is no separate economic interest in the OS, as it is an upgradable feature of a product. You might also consider A.I. Root (availability of substantially similar and functionally equivalent substitutes). Consider also Uniq ("low' market share [one much greater than Apple's] and lack of abuse by elevated price means that the market power criterion fails). These are all basic cases in the field.
You've presented nothing to defeat the thousands of everyday examples of perfectly valid arrangements, the failure to engage in an actionable abuse of market power via the OS (price is lowered, not raised, which is only anticompetitive if offered to the greater market; Apple would violate antitrust laws by removing the platform restriction, because it would be engaging in predatory pricing).
You've further been unable to present anything resembling cohesive analysis: incomplete case citations without union to the text, and misuse of terms of art (in some cases, even after defining them!). All of your objectionable propositions remain unsupported. That you are researching without a clear and working knowledge of the fundamentals in the field is what clearly indicates that you are out of your element. It's your lack of context and attention to wording that most screams "law student" in this discussion, if one needed to make such an accusation, and it's quite clear to everyone reading this that my familiarity here exceeds the clunky and clumsy basics you present, and not the caliber of a law student glossing over the details.
Like the quote that directly refutes what you said was the tying and tied product?
It does appear that in one of my comments, I reversed the labels 'tied' and 'tying' for a section, but the proposition remains the same.
I see, when the quotee clearly contradicts you, it is no longer relevant.
Hardly. The question was never whether there was an obligation to sell RDOS separately, but rather, as the court stated, whether there was an obligation to sell RDOS where the compatible hardware would be of no comparative utility without it and where commercial lock-in existed. Without those elements, there is no valid decision.
The court knows there is no monopoly and uses a much looser definition of market power.
Market power and monopoly are not the same. There is no issue of a monopoly in the antitrust sense when dealing with a single product.
If it was explicit, feel free to provide a quote.
The entire opinion stands for it. You're plainly unfamiliar with the basics of legal analysis. Opinions on unfair competition spell out the narrowest possible grounds. The act itself is not anticompetitive, or the opinion would be quite short. The refusal to license is not anticompetitive, or there would be no need to discuss the specifics of
Again, see Digidyne, or even my qute from Data General. It talks about the costs of moving to a new OS because of all the applications accumulated over time.
Time and time again you miss your own point. You can't have an accumulated investment in a platform you're entering. There is no lock-in by Apple preventing you from becoming an OS X user. The concepts are mutually exclusive. The court rejected no such argument. To do so would be ludicrous.
Digidyne directly contradicts you. "As the evidence in this case establishes, the initial choice is not free of forcing. Defendant's operating system has *1343 been shown to be unique as a matter of law and distinctively attractive as a matter of fact." The uniqueness came from copyright,
It does not. That is the precise section that invalidates the holding with respect to Apple. It is not the copyright that makes the product unique. It is the absence of functionally equivalent and substantially similar products.
A statute or case is "on point" if it has direct application to the facts of a case currently before a tribunal for determination.
You're not reading what you've written. The facts are not on point. The existence of substantially similar and functionally equivalent alternatives to both OS X and the hardware it runs on eviscerates the crux of the decision. The total absence of commercial lock-in, which you are swimming around in confused circles trying to apply, is the vehicle used to elevate Data General to an actionable state. Without either of those certainly, and quite likely without both, the facts are not parallel and the case is not on point.
A case may be on point if its facts apply as a portion of your issue, but not if it oversteps. It does not matter how similar all the other pieces are if the critical elements are not present. It could be Apple refusing to license System 5 to Psystar two decades ago, but if the facts upon which the case is decided are not the same, the case is not on point.
And again, the quote from Digidyne: "As the evidence in this case establishes, the initial choice is not free of forcing.".
And again, you do so without the context: the initial choice th
You haven't at all, actually, until now, and the citations you're providing don't stand for your assertions, nor do they counter what is not only my interpretation, but the synthesis of two decades of scholarly comments on the matter of tying. AC is correct in the interpretation offered regarding the absence of substantially similar and/or functionally equivalent products, and the lock-in argument fails on no fewer than three grounds, as we'll soon get to.
Digidyne, and their customers wanted to buy the OS from Data General (tying product), but they were also forced to buy the hardware from Data General (tied product). You can also take the court's word on the matter.
Not the issue. The issue was that the product, deemed useless without the RDOS product and being sold to those commercially locked-in, was being withheld. Neither circumstance exists here. The availability of a product to customers of that company alone is not illegal. Data General explicitly declines to make it so. Further, there is no product being tied at purchase--the restriction is on eligibility, not other purchase considerations. Unlike with RDOS, you are not required to make an additional purchase. You can purchase OS X separately if you meet the eligibility requirements of the license.
There is no rule specifying that companies must make their software available to everyone, whether it is compatible or not. Take for instance for-sale software packages for GPS systems. As upgrades to a prior possessed product, you must own the GPS in order to use the software. Magellan is not required to publish its software, nor make it available (at the same price or any other price) to TomTom--whether or not it is compatible with the hardware device. Such is not an unlawful tying arrangement, as no second purchase is being induced at all. When you purchase OS X, you are not compelled to purchase a computer.
BTW, wold you provide the cases you refer to about challenging vendor lock-in? The cases I've found and read so far have involved franchises.
You misunderstand. The challenge is not to vendor lock-in, but rather to its applicability as an antitrust defense in commodity and consumer products, absent other foul play. Vendor lock-in by mandate remains, but on its own, the gradual and voluntary accumulation of software, hardware, and accessories is not a basis for an anti-trust allegation.
You cannot, for instance, say that your seat covers, custom LCD head unit, winter tires, custom-offset rims, and various modifications to your car that only work with Nissans, for example, locks you in to purchasing a Nissan in the future. I'm aware of no case finding otherwise. Vendor lock-in is an assertion limited almost always to either mandated setups (rare) or commercial contexts, and not the nominal accumulation by consumers. Even the claim that an audio player that only supports XYZ locks you in to purchasing music only from places that sell XYZ files, and that happens to be just one store is dubious--the decision to purchase the product, with that obvious limitation, was voluntary. Purchasing a Wii locks you in to having to buy titles compatible with the Wii. It's not anticompetitive to do so--nor is requiring you to be a Wii owner in order to lawfully use a Wii game.
That, of course, returns full circle to the overall point. A platform prerequisite is not unlawful tying.
Digidyne is on point, because contrary to your belief, it is about the same circumstance, and not the reverse.
You could not be more wrong. The number of citing references to this case is infinitesimally small because the holding is on a narrow set of facts that rarely happens absent other antitrust breaches. The holding is minimalist, prohibiting tying where no feasible alternative exists absent striking down a purchase requirement. Review the
Unsurprisingly, your reading comprehension is as robust as your rhetorical skills. No court has ever ruled EULAs categorically unenforceable. Thanks for playing.
Having recently re-read Digidyne v. Data General, I believe you are the one that has the case reversed.
I'd suggest reading it again, then.
Digidyne, like Psystar, was making compatible hardware
Digidyne was making a compatible variant of the Nova CPU, a product that was useless without RDOS. That's the core of the 'market power' discussion--and the reason for the unusual construction of market power, in fact. You miss the context of the lock-in discussion and the reason for its inclusion entirely.
If you follow the text, note the portions dedicated to dispelling the idea that tying is per se unlawful, where promotional tying is explicitly cited as a Good Thing, along with the explicit grounding in the commercial nature of the dispute, and the reliance of vendor lock-in. That portion has been explicitly challenged since and has never applied to commodity products.
Digidyne is certainly on point, and it may be controlling.
Backwards. It's controlling, but not directly on point. There are major and fundamental factual differences, as have already been mentioned.
Absent the commercially-couched lock-in (in addition to the bottom falling out of prices in the two decades since, consumer lock-in was not an issue), what remains is the need for RDOS in order to make the hardware useful. Neither is applicable here, and those are, as I've said, the linchpins of the opinion. The similar context has no value without the moving parts--just as the opinion says, the existence of alternatives would almost certainly have reversed the decision. Data General stands out alone, an oddity of an opinion with few citing references, hinging on operative facts that almost never happen. It's deceiving to view the similar circumstances and think you're on to something when it's simply not the case--a common trap for the uninitiated.
However, that doesn't mean they have the right to prohibit it either.
If it is not being sold, it is ipso facto prohibited.
Right, but I do have the right to buy it in the form that Apple is offering it, and then modify it to suit my needs.
You have the right to purchase a copy for your Macintosh. You have no right to prepare or distribute a derivative work. Those rights are expressly reserved by Apple.
However, I argue that in this case it ought to be allowed, because the modification is functional (rather than creative) in nature.
There is no such dichotomy. A functional adaptation more than passes the bar to copyrightability, and thus, infringement.
They're claiming that there's a rule that the use can't be restricted.
Of course it can be.
the principle of private ownership of property!"
A principle not applicable to property rights not owned by the individual in question.
But OS X is being offered to an audience outside the group of Mac owners. You don't have to prove you own a Mac before the salesperson will allow you to buy it, after all.
It is not being offered to anyone but Mac users. It is available for purchase, which is entirely different.
Not having to provide proof is a benefit for everyone. Your argument, as others, begs for the application of invasive sales procedures and DRM, while you condemn such practices from the other side of your mouth. Here you have a company trusting the consumers to honor its terms, proving that you can't be trusted to do so. It's simply not a right you possess. Nothing is imposed after the sale. The contents of the box don't magically change--it was there from the start. That you don't like it is immaterial.
They're under no obligation to do so, particularly because authorizing such use comes with it consumer protection mandates requiring warranty and support. They are not permitted to sell a retail product "as is", and the compliance costs are not something Apple is interested in taking on.
If what you want to buy is not available in the form you want, too bad. They don't have to sell it to you, and you don't have any right to take it.
Even if Psystar wins, the decision would do nothing to diminish the legality of giving discounts to repeat customers.
Au contraire, that is the entire basis of their counterclaim. They are claiming a nonexistent per se rule that the sale of their OS cannot be restricted. Period.
There is no per se prohibition on tying. There is no prohibition at all on promotional tying. Offering a product based on the existing ownership of a qualifying product does not mean that the product has to be offered to an audience outside that group at any price, let alone the favorable price.
They should NOT be paid for things that they no longer create. Copyright should not be a license to print money, as it is now. It should be a license to make new things without fear of being ripped off immediately, and that's it.
It does not and cannot work this way. Artists don't get paid until the work is created, unless they are preparing a work for hire and have negotiated advance payments.
Copyright is not a license to print money any more than your job is a license to print money. The money must come from somewhere. It does not promote the useful arts to allow others to profit from a third party's work. If there is money to be made, then it is naturally the author who should be entitled to make it. Copyright has always been intended to lapse after the work has been fully and readily disbursed, in contrast to patent terms, which lapse sooner to encourage the profit of others.
The only possible similar complaint with copyright is in the preparation of derivative works, such as someone desiring to make further Harry Potter stories while doing so is still profitable. This poses two immediate problems: it is a bald attempt to capitalize financially, not artistically, on the work of others and more fundamentally, it betrays the integrity of an artistic world--a concept less respected in America than most other IP systems.
The bottom line is that enrichment of the public domain was never meant to be immediate or timely, but rather for posterity's sake. Video games don't have that kind of lifespan, as nostalgia strikes the adults of that generation. It's certainly worth considering an abandonware exception, but it's a quirk of the medium, not of the law.
However, you have no legal or moral right to force me to not sell your product after I have legally purchased it from you, or someone you have authorized to sell it.
Absolutely. But if what you are doing is not reselling, then this is a moot point. Psystar is free to purchase the retail boxed copies at $129 and then to sell those retail boxed and still shrinkwrapped copies to whomever will buy them.
But the issue of sale becomes moot as soon as the package is opened and installed on a system.
Once you put an item on the market, your control of it is gone. If you do not like that, do not sell it.
Indeed. Fortunately, however, OS X was never put on the market. Apple also never sold any of the rights except the limited set it did make available for sale. Those rights are described statutorily (in copyright law) and in the terms of the license agreement. Apple, Microsoft, Adobe, Ford, or the company of your choice places something up for sale. You cannot acquire more than was sold to you.
In the case of OS X, the price you paid bought you a right to use, possess, and resell a copy of the operating system on a Macintosh computer. If you want to do something beyond that, that's something you need to go back to Apple and purchase from them, because you don't have it until you buy it.
The right of first sale arguably trumps Apple's EULA.
Neither "trumps" the other because there is no conflicting overlap. Resale rights have nothing to do with the scope of rights.
The only place there would be a conflict would be if the EULA expressly forbade you from selling your complete set of rights to someone else. Then, it would presumably (but not without exceptions) violate DFS. Short of that, it's a non-issue.
You've got the right idea, but you're applying it backwards.
Because it is now an open and popular platform, the existence of substantially similar and functionally equivalent alternatives actually makes a stronger case for Apple.
Consider Data General. The linchpin of the decision was that the CPU was useless without the OS--that without the tied product, the tying product had no utility. Without that detail, the decision does not work. It's very different from the case of a bundle of an x86 computer system and an x86 OS. There are dozens of compatible operating systems and dozens of compatible hardware manufacturers. You don't have a paperweight when you buy any kind of computer, because you don't need a specialized OS to run it. Apple and Psystar are missing the critical element of Data General and Digidyne.
Attempts to reverse it, such that the tying product is the OS are amateur at best. The OS does not come with a computer attached. It is sold as an accessory and upgrade by a company to existing users of that same company's products. There's no requirement of a purchase when you buy the OS--it's not being tied. The sale is premised on the existing possession of a Mac, but this is nothing new. Upgrades are always sold in this manner; it's not unique to software, either.
It's promotional availability: buy one, get one free. You can't say that you can't get the tied product (the free item) unless you buy the non-free one. Promotional tying is also quite common in bundle packages, e.g., toothpaste with a toothbrush for $5, while the toothpaste alone is $4 and the toothbrush alone is not available for sale. You can't demand the toothbrush for $1. There are thousands of examples of favorable pricing or special product availability based on a prior purchase.
That Apple chooses to sell OS X at a particular price, for its existing customers only, simply does not require that that price be made available to anyone else. The same can be said of Microsoft and its OEM and upgrade pricing policies, and the same can be said for companies who condition the sale of accessories, add-ons, upgrades, etc. on the prior purchase of the underlying product.
It is not immoral or illegal to set the terms under which you will or will not sell something. It further is not incumbent on that party to devise a foolproof system--the argument that an individual can buy one off the shelf and finagle an installation out of the disc is not convincing. It's an argument that seems to be begging for invasive sales procedures and DRM. Apple offers owners of its computers a good product at a low price and trusts consumers to honor that.
Showing up to say that Apple is getting what it "deserves" by having a desirable product at a below-cost price, sold over the counter without restriction or complication, and that Apple's business model is not their concern is exactly why corporations hate consumers, especially the kind that often populate this forum.
They aren't trying to sell Apple's OS as they're own, they're trying to stand up to Apple's bullying that immorally
This is what's so laughable about the whole thing: OS X costs $129 and Windows $299 not because Apple is less greedy than Microsoft, but because the customers for whom it is intended have already invested in the platform R&D.
The only logical result is the discontinuation of the favorable pricing given to Apple customers. Take a look at any tying case that talks about the theory--promotional tying is not barred, nor is tying per se illegal. It shouldn't be. Favorable pricing for prior customers is one of the benefits one expects from being a repeat customer, and supporting this line of reasoning supports it being banned as anticompetitive. Those posters on Slashdot making points like yours are so painfully short-sighted that it's no wonder consumers are treated with disdain.
You're cutting off your nose to spite your face.
says you can't run their OS except on their hardware.
In exchange for which, you get a price far lower than what it actually costs. OS X retail sales don't even account for 1% of Apple's revenue--and account for a scarcely larger fraction of OS X support, R&D, and other ongoing costs. They give their customers a favorable price, because the customers support them through their hardware and continued business. It's not a product that supports itself in the retail channel. Being a company with a smaller potential number of copies, the per-license cost of OS X should be greater than Microsoft's.
Apple chose not to sell the upgrades at this price, because its financial success allows it to conduct those transactions at a loss. Opening that favorable pricing to everyone destroys both the incentive and the value. Psystar is not contributing to the actual costs, but rather taking advantage of a promotional price for existing customers and using it for their financial gain, knowing full well that it represents a loss to Apple. Media attention is the only motivation for the legal action.
Simply put, they're under no obligation to sell to others at all, and especially not to do so at a loss, even if they choose to offer such prices to their own customers.
A distinction without a difference. How one chooses to be paid is not a significant difference. If the value of the work is $500,000, then whether it is paid in one lump sum, a salary over five years, or through the use of a royalty system is irrelevant to the law.
being that they need to continue showing up to work in order to get paid
Whereas the artist doesn't get paid until after the work is complete, often with sizable debts facing him and questionable prospects. It's a high risk field, which is why the value of the work exceeds the sum of its parts. It must compensate for all the failures along the way.
Even the sculpture example is different, since there is only one
Again, not relevant. Whether it's a small sculpture, from which molds and replicas are made, or a giant sculpture made for exhibition or a work made for hire, the value is what the market will bear, for as long as the market will bear it.
If everyone followed this logic then nothing would ever change.
Nonsense. If everyone followed this logic, then the business model would be dead. Media goes where the money is--people still buy the works from these labels, which means they want them, which means they have no incentive to change.
What about "If you don't like your government then you're free to choose another country to live in"?
A colossal, but unsurprising, failure of parallelism. The issue isn't protest or disagreement--it's flagrant abusive tactics and simple, unbridled greed stemming only from a sense of childish entitlement. Music, movies, and art are not essential utilities. They're not required at all. If you don't like it, do without. Don't dare try to make this a human rights issue.
First, citation needed. Second, "Life of the author" is a shitty measure because:
First, the only citations you need are to the relevant US Copyright Acts. Look them up. It's clear you haven't, because, "life of the author" is not the exclusive measure.
It discriminates against people who create late in their life.
That's why the term is Life plus 70 *OR* 95 years.
2. It makes determining whether a given work is copyrighted difficult if the author is obscure.
You need only know the publication date or to contact the publisher or the publisher's successor. It's not that complicated.
3. What happens if an organization holds the copyright? Does it ever expire?
Yes. The term is the life of the author plus 70 years or 95 years from publication. If it's a work for hire, the term of copyright is 120 years. The fact that you don't even know this and somehow others think this is somehow insightful only further exposes Slashdot's parody-worthy bias and ignorance.
Why we should preserve the benefit of authors' descendants at the expense of society when the authors are long dead?
Because that is what survivorship is in this country. If you don't agree with it, you must change the fundamental principle, not arbitrarily rail against one of its manifestations.
The discussion is not about the 95% of people but the 5% elite of "content producers" that long copyright creates.
Slashdot Mirror
Well, sure. After all, the president's number one job isn't to have power, it's to distract from it.
The number two job is to take credit and blame for everything he can get a speechwriter or journalist to write about. ;)
No, you most certainly need both
No, you don't. The analysis was split, as I've said, for judges and jurisdictions that follow Leff's analysis. It is not binding, certainly not in California, and not most other places. You have provided no citation for your bizarre insistence on turning categorical factors into elements.
Perhaps you haven't gotten that far in law school yet.
See that phrase "without negotiation"? Why are you considering that to be a substantive issue?
Because it goes to the surprise--if it is point out to you, even if it is not negotiated, it's permissible. If it is hidden in a contract where one does not expect it, it bolsters a finding of unconscionability.
It's not the procedure of negotiation that's important, but rather, the disclosure of terms--without negotiation or notice, there is a failure of mutual assent.
and you're getting them confused in a silly effort to find all adhesion contracts invalid.
No. You're getting confused in some weird alternate reality that has spanned days now. I have made no statement about the validity of adhesive contracts--most of them are valid, and my prior posts on Slashdot have backed that up.
It's your lack of precision that seems to be tripping you up.
rather than just complaining that I used the Pacific Reporter (which is capitalized).
Pacific Reporter is capitalized. This, however, is what I was talking about: "they're coming from different Reporters." The correct phrase is 'they're coming from different reporters'. See the difference? If that's not a complete summation of exactly your problem, I don't know what is. You're just not paying attention, and you're taking exception to things you assume, without paying attention to the structure or context of the argument, which has lead to this moronic objection of yours.
Binding arbitration clauses have been upheld by SCOTUS in Shute and others
No. In Shute, it was a forum selection clause. The arbitration was optional. Shute, furthermore, was explicitly couched in the lowering of ticket prices as a result of only needing to handle disputes in one location--a significant administrative cost for an international cruise line and a reasonable desire not to be haled into courts of dozens of different nations. It is also worth noting that because Shute did not, in fact, offer any analysis of the lower fares, it is not commonly followed on that point, but more on its findings of commercial reasonableness. Further, I have never stated that it was impossible to insert a binding arbitration clause in these agreements. Perhaps you should go back to the very beginning: I said they were disfavored, and subject to a much higher level of scrutiny. You have yet to provide any contrary authority.
. I've given you four cites.
No. You've given cases, and a mistaken understanding of each of them. None of them supports your finding of elemental procedural + substantive unconscionability, and none of them contests my original assertion that they are disfavored in rental, employment, and service agreements as abuses of unequal bargaining power.
On the other hand, I've already given you the complete Walker-Thomas rule, pointed you toward Industrialease, and corrected your use of at least three of your four citations.
If that's not enough, though, consider Roberts v. Smith Barney, 653 F. Supp. 406 (1986). (Unconscionability in binding arbitration with adhesive contracts occurs where there is a lack of choice or notice and terms are unreasonably favorable to one party).
See also David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd., 923 F.2d 245 (1991): "For an arbitration provision to be stricken as a contract of adhesion there must be a showing of " 'un
You can be pissed all you want that homeschooling is more successful than public schools at giving kids a good education
That's far from the truth.
There are certainly many success stories from homeschooling, but consider the inputs: those kids are motivated students from generally affluent families whose parents are themselves sufficiently sophisticated to prepare a curriculum. There was never really any doubt about the success of their education. The benefit comes from individual attention and self-pacing, which isn't a benefit of homeschooling but rather of class sizes you and your crackpot instruction.
For every "success", there's a sadly manipulated child as well as a total failure to go along with him. Saying that homeschooling is the answer is disingenuous at best. Few parents are sufficiently skilled or knowledgeable to complete an entire primary and secondary education.
If they are as good as they claim at educating, they should be able to write a decent text book.
Spoken like someone who truly fails to understand what a teacher is for. Educating isn't simply feeding data. Being able to write a textbook is an entirely different skill from being able to help students apply that information. You don't ask the race car driver to build the car. Even being an expert in a particular field does not mean you can write an effective textbook about it.
Just look at all the professors who are brilliant theorists and scholars but terrible instructors.
Actually, it's the fault of the 47 states that existed at the time (and ultimately the brand-new 48th state, Arizona) and the 61st and 62nd Congresses, if I'm doing the math right.
Taft was elected in the first place because of his "progressive" take on fiscal policies, including his support for the Democratic proposal to create an income tax. Taft, of course, had no direct authority regarding the amendment.
Which is exactly what I said. Reading comprehension isn't your strong suit, is it.
Actually, it seems yours is the issue again. I haven't been saying anything different from the beginning, but at least three times now you're drawing a distinction where none exists.
There is no need to quantify procedural/substantive unconscionability, unless your only familiarity with it is as a law student working out of some horseshit secondary source. You don't need both, and since the procedural element is not a concern, your bizarre insistence on repeating the "you need both" pile of manure is misplaced at best. The two steps are factors, not elements, and as I've been saying all along, the adhesive contract would fill any judge's desire to find procedural unconscionability, rendering it moot. The substantive issue, the waiver of rights without negotiation, is the operative portion.
The simple fact remains that binding arbitration clauses are disfavored in agreements in rental contracts, employment contracts, and service agreements because they are unilateral imposition of surprising terms that remove rights one does not expect to surrender in the course of bargaining.
That is not to say that binding agreements must be unconscionable or that they can never be included in an agreement.
Yes, Sparky, an adhesionary contract is procedurally unconscionable
Not necessarily.
It satisfies the procedural factor for courts inclined to look for one in ruling on the presence of unconscionability. That does not make adhesive contracts unconscionable.
You don't think the Pacific Reporters are good cites?
Nope. They're parallel cites. Always use the official reporters when giving authority, or at the very least be consistent. Rookie mistake.
While you're flapping about, here are a few other tips: rhetorical questions still end in question marks ("Is it."), 'reporter' is not a proper noun and should not be arbitrarily capitalized, and continuations of thoughts on the other side of ellipses are not capitalized because they're not new sentences ("what... Take").
Anger is unprofessional.
The first one was adhesionary, but that's not what made it invalid.
No shit.
Here's what you don't seem to be able to grasp about the process.
1. A binding arbitration clause in an adhesive contract is presumptively biased in favor of the Offeror.
2. Adhesive contracts ipso facto satisfy procedural unconscionability where the term in question is not essential to the benefit of the bargain.
3. Where the arbitration clause was not highlighted as a feature of an agreement, it constitutes surprise.
4. Where an arbitration clause unilaterally strips the Offeree of a right to contest the contract by waiving the right to file suit or to have access to an impartial forum to hear grievances, they are generally viewed as unconscionable, per the Walker-Thomas rule: "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party [and characterized by] a gross inequality of bargaining power." 350 F. 2d 445, 449 (1965).
What made it unconscionable was that the mandatory arbitration provision specified Scissor-Tail's board of directors as the arbitrators.
That would be the lack of benefit. Lower prices weren't a benefit--they were an excuse.
Offering arbitration and capping damages are ways to cut costs. Offering arbitration that is neither fair nor impartial does not cut costs, though. It cuts costs for the seller, while effectively eliminating any right to contest of the buyer.
Again, what you've missed is that in order for a contract to be invalid for unconscionability, there needs to be both procedural and substantive issues. Just procedural unconscionability alone, such as an adhesionary contract with perfectly reasonable binding arbitration, is not invalid.
What you're continuing to miss is that I never said otherwise.
The "inconsistent citation format" is because they're coming from different Reporters.
That's what's inconsistent. You should always use the official reporter for your citations. Had you actually used Westlaw, you would have come up with 28 Cal.3d 807 and 24 Cal 4th 83.
Perhaps when you actually graduate from law school, you'll be able to synthesize properly instead of taking on imagined slights. Were you actually a lawyer, these things might have been more clear. An adhesive contract is all you need for the procedural "element", if you are going to follow Leff and try to find both, when in fact, either can satisfy the gravamen for unconscionability, and attempts to shoehorn both result in a vacuous analysis, as in Industrialease.
You seem to be saying exactly what I am saying, taking exception with regard to some fabricated version of reality.
Consider Armendariz (your inconsistent citation format and examples plainly indicate your use of Wikipedia for examples, and really poor use of them, at that)--an employment case finding an unconscionable contract of adhesion due to the unequal bargaining power.
Consider also your own use of Graham v. Scissor-Tail, Inc., where the unequal bargaining power and lack of any reasonable benefit to the Offeree made the clause unconscionable.
Nothing you have said contradicts anything I have said.
Binding arbitration clauses can be fine, even in adhesionary contracts, and the court even mentions this:
No. The court mentions that there is nothing wrong with arbitration. Binding arbitration, where the right to bring suit is summarily waived, is and has been subject to the court's disdain for quite a while.
Any situation in which forced arbitration is a non-negotiated requirement of an agreement, which tends to disproportionately favor one side over the other, is evaluated quite carefully.
There is nothing wrong with arbitration. Courts love it when parties go to mediation and arbitration, because it gets them out of their hair. On the other hand, when it is loaded into an adhesive contract and puts the Offeree in a situation where they have lost their right to take action without having any foreseeable benefit to doing so. This is especially true in certain classes of agreements, like rental agreements, employment contracts, and service agreements, like we have here.
There's a whole litany of cases on the subject. These types of agreements utilize the unequal bargaining power to enact an unconscionable waiver of rights.
So, again, this decision does not say all arbitration clauses are unconscionable, and even goes out of its way to say they could be fine... but only "could" be fine - the issue is what other clauses are present.
Arbitration clause != binding arbitration clause without option to bring suit. As I've already said, both in this post and the earlier one, preserving arbitration as an option is important, but forcing it in a non-negotiated contract is very commonly unconscionable and has been part of the consumer rights movement of the past decade.
These arbitration clauses are also widely-overturned. This is hardly news--courts have been striking them down left and right for a decade now. Binding arbitration agreements are among the most common provisions stricken from agreements, including EULAs (in fact, it's the most common violation stricken down in software licenses).
The basic premise is that choosing ADR should be preserved as an option, but waiving your rights to contest actions in order to get service is wrong. It is. It has little to do with class actions--it's about litigating your individual grievances with the company.
Contrary to the editorializing in the summary, however, it has nothing to do with anything other than the fact that binding arbitration is disfavored as a lopsided provision offering no advantage to the customer.
That's the point. OP was engaging in what is called a rhetorical style in conveying his narrative tale.
More troubling than your failure to grasp that, though, is that damned buggy-whip example. Is it a shibboleth for some underground Slashdot group? Because it's not like there was ever a large buggy-whip industry in the first place. As a tale of adaptation, it's lacking. And somehow, no one uses it to talk about American programmers adapting to outsourcing by finding another job or lowering their salary expectations. I guess it only works one way.
An anomalous decision based on a doctrine of utility and an ancient case fearing the locking-up of communication. The concern is rooted in the pre-digital age when typefaces were far more limited in number. Subsequent case law has been treading deeper into protection of the creative aspects of typeface design, particularly in light of counterexamples in Europe--copyright protection there has increased the competitive marketplace for typefaces and has resulted in no such "lockdown" on information, as the preexisting set of typefaces remains free and open to use, and all works produced on validly licensed fonts are free to use. Further, any infringement is incumbent on the producer, and avoidance is simply the use of one of the public domain, free, or purchased fonts the producer has lawful use of.
Not all typefaces would be copyrightable under the Merger Doctrine anyway, even ignoring the hundreds of typefaces ineligible for protection from the outset. Commercial typefaces can be improved through copyright protection, giving US artists an ability to compete on the international stage.
This of course, brings us to the greater point: the United States is obliged to honor the European copyrights on typefaces as a signatory to the Berne Convention. Thus, many fonts are afforded copyright protection. It's simply that due to a quirk in our Copyright Act (which we are technically obliged to change to harmonize with Europe due to international IP agreements) and an old SCOTUS decision, the typeface itself is not copyrightable here. Other means of economic protection are, however, available independent of copyright, and are used for some of the high-end typefaces and packages.
Copyright on typefaces would actually stir competition and make more fonts available freely (as in money), while continuing to permit the design and copyright-free release of typefaces to those who wish to do so. It would also eliminate a US-only oddity.
The concern about copyright on typefaces is intuitively appealing, but in practice is not a true concern. In fact, the scope of protection is so narrow that any form of independent creation without direct reproduction counts as a new typeface, so there can never be an impenetrable thicket.
It's clear you're not a practitioner (maybe a law student?),
Humorous, but plainly wrong.
It's your spotty writing and analysis that invites such a statement. You've plainly ignored the general rules of interpretation and construction, the issues of fact and context marked by clear statements and differences in scope, as well as the further development of case law.
You've further ignored the application of the Rule of Reason, the razor blades business model, the case law on lock-in, the fundamental differences between force and desirability (the availability of a particular desirable feature is the very core of competition, and conflating desirability with force is a hilarious full-360), and even the quotes you provide fall far short of supporting your proposition.
If you have read through Holmes, you would see even more issues presented that are problematic for Psystar. You might consider a Sonora argument as well as the six or seven others presented: the economic interest only extends to the Macintosh component--there is no separate economic interest in the OS, as it is an upgradable feature of a product. You might also consider A.I. Root (availability of substantially similar and functionally equivalent substitutes). Consider also Uniq ("low' market share [one much greater than Apple's] and lack of abuse by elevated price means that the market power criterion fails). These are all basic cases in the field.
You've presented nothing to defeat the thousands of everyday examples of perfectly valid arrangements, the failure to engage in an actionable abuse of market power via the OS (price is lowered, not raised, which is only anticompetitive if offered to the greater market; Apple would violate antitrust laws by removing the platform restriction, because it would be engaging in predatory pricing).
You've further been unable to present anything resembling cohesive analysis: incomplete case citations without union to the text, and misuse of terms of art (in some cases, even after defining them!). All of your objectionable propositions remain unsupported. That you are researching without a clear and working knowledge of the fundamentals in the field is what clearly indicates that you are out of your element. It's your lack of context and attention to wording that most screams "law student" in this discussion, if one needed to make such an accusation, and it's quite clear to everyone reading this that my familiarity here exceeds the clunky and clumsy basics you present, and not the caliber of a law student glossing over the details.
Like the quote that directly refutes what you said was the tying and tied product?
It does appear that in one of my comments, I reversed the labels 'tied' and 'tying' for a section, but the proposition remains the same.
I see, when the quotee clearly contradicts you, it is no longer relevant.
Hardly. The question was never whether there was an obligation to sell RDOS separately, but rather, as the court stated, whether there was an obligation to sell RDOS where the compatible hardware would be of no comparative utility without it and where commercial lock-in existed. Without those elements, there is no valid decision.
The court knows there is no monopoly and uses a much looser definition of market power.
Market power and monopoly are not the same. There is no issue of a monopoly in the antitrust sense when dealing with a single product.
If it was explicit, feel free to provide a quote.
The entire opinion stands for it. You're plainly unfamiliar with the basics of legal analysis. Opinions on unfair competition spell out the narrowest possible grounds. The act itself is not anticompetitive, or the opinion would be quite short. The refusal to license is not anticompetitive, or there would be no need to discuss the specifics of
Again, see Digidyne, or even my qute from Data General. It talks about the costs of moving to a new OS because of all the applications accumulated over time.
Time and time again you miss your own point. You can't have an accumulated investment in a platform you're entering. There is no lock-in by Apple preventing you from becoming an OS X user. The concepts are mutually exclusive. The court rejected no such argument. To do so would be ludicrous.
Digidyne directly contradicts you. "As the evidence in this case establishes, the initial choice is not free of forcing. Defendant's operating system has *1343 been shown to be unique as a matter of law and distinctively attractive as a matter of fact." The uniqueness came from copyright,
It does not. That is the precise section that invalidates the holding with respect to Apple. It is not the copyright that makes the product unique. It is the absence of functionally equivalent and substantially similar products.
Review what on point means -- it is about the applicability of the law / case law. Here's the first legal dictionary google pulled up:
http://legal-dictionary.thefreedictionary.com/On+Point
A statute or case is "on point" if it has direct application to the facts of a case currently before a tribunal for determination.
You're not reading what you've written. The facts are not on point. The existence of substantially similar and functionally equivalent alternatives to both OS X and the hardware it runs on eviscerates the crux of the decision. The total absence of commercial lock-in, which you are swimming around in confused circles trying to apply, is the vehicle used to elevate Data General to an actionable state. Without either of those certainly, and quite likely without both, the facts are not parallel and the case is not on point.
A case may be on point if its facts apply as a portion of your issue, but not if it oversteps. It does not matter how similar all the other pieces are if the critical elements are not present. It could be Apple refusing to license System 5 to Psystar two decades ago, but if the facts upon which the case is decided are not the same, the case is not on point.
And again, the quote from Digidyne: "As the evidence in this case establishes, the initial choice is not free of forcing.".
And again, you do so without the context: the initial choice th
I have included citations,
You haven't at all, actually, until now, and the citations you're providing don't stand for your assertions, nor do they counter what is not only my interpretation, but the synthesis of two decades of scholarly comments on the matter of tying. AC is correct in the interpretation offered regarding the absence of substantially similar and/or functionally equivalent products, and the lock-in argument fails on no fewer than three grounds, as we'll soon get to.
Digidyne, and their customers wanted to buy the OS from Data General (tying product), but they were also forced to buy the hardware from Data General (tied product). You can also take the court's word on the matter.
Not the issue. The issue was that the product, deemed useless without the RDOS product and being sold to those commercially locked-in, was being withheld. Neither circumstance exists here. The availability of a product to customers of that company alone is not illegal. Data General explicitly declines to make it so. Further, there is no product being tied at purchase--the restriction is on eligibility, not other purchase considerations. Unlike with RDOS, you are not required to make an additional purchase. You can purchase OS X separately if you meet the eligibility requirements of the license.
There is no rule specifying that companies must make their software available to everyone, whether it is compatible or not. Take for instance for-sale software packages for GPS systems. As upgrades to a prior possessed product, you must own the GPS in order to use the software. Magellan is not required to publish its software, nor make it available (at the same price or any other price) to TomTom--whether or not it is compatible with the hardware device. Such is not an unlawful tying arrangement, as no second purchase is being induced at all. When you purchase OS X, you are not compelled to purchase a computer.
BTW, wold you provide the cases you refer to about challenging vendor lock-in? The cases I've found and read so far have involved franchises.
You misunderstand. The challenge is not to vendor lock-in, but rather to its applicability as an antitrust defense in commodity and consumer products, absent other foul play. Vendor lock-in by mandate remains, but on its own, the gradual and voluntary accumulation of software, hardware, and accessories is not a basis for an anti-trust allegation.
You cannot, for instance, say that your seat covers, custom LCD head unit, winter tires, custom-offset rims, and various modifications to your car that only work with Nissans, for example, locks you in to purchasing a Nissan in the future. I'm aware of no case finding otherwise. Vendor lock-in is an assertion limited almost always to either mandated setups (rare) or commercial contexts, and not the nominal accumulation by consumers. Even the claim that an audio player that only supports XYZ locks you in to purchasing music only from places that sell XYZ files, and that happens to be just one store is dubious--the decision to purchase the product, with that obvious limitation, was voluntary. Purchasing a Wii locks you in to having to buy titles compatible with the Wii. It's not anticompetitive to do so--nor is requiring you to be a Wii owner in order to lawfully use a Wii game.
That, of course, returns full circle to the overall point. A platform prerequisite is not unlawful tying.
Digidyne is on point, because contrary to your belief, it is about the same circumstance, and not the reverse.
You could not be more wrong. The number of citing references to this case is infinitesimally small because the holding is on a narrow set of facts that rarely happens absent other antitrust breaches. The holding is minimalist, prohibiting tying where no feasible alternative exists absent striking down a purchase requirement. Review the
That's not true. See Wikipedia
Unsurprisingly, your reading comprehension is as robust as your rhetorical skills. No court has ever ruled EULAs categorically unenforceable. Thanks for playing.
Better luck with your trolling in the future.
Once again, your clear error in the discussion is simply not correctable. Your language and ignorance simply bear no weight.
which means that those words that Apple claims represent an EULA have no legal weight.
Not a single court agrees with you.
WTF? USING MY OWN FUCKING PROPERTY most certainly IS a right that I possess!
Yes, but your property does not extend one inch beyond what was purchased. Since what you describe is not within your property, it is a moot point.
Having recently re-read Digidyne v. Data General, I believe you are the one that has the case reversed.
I'd suggest reading it again, then.
Digidyne, like Psystar, was making compatible hardware
Digidyne was making a compatible variant of the Nova CPU, a product that was useless without RDOS. That's the core of the 'market power' discussion--and the reason for the unusual construction of market power, in fact. You miss the context of the lock-in discussion and the reason for its inclusion entirely.
If you follow the text, note the portions dedicated to dispelling the idea that tying is per se unlawful, where promotional tying is explicitly cited as a Good Thing, along with the explicit grounding in the commercial nature of the dispute, and the reliance of vendor lock-in. That portion has been explicitly challenged since and has never applied to commodity products.
Digidyne is certainly on point, and it may be controlling.
Backwards. It's controlling, but not directly on point. There are major and fundamental factual differences, as have already been mentioned.
Absent the commercially-couched lock-in (in addition to the bottom falling out of prices in the two decades since, consumer lock-in was not an issue), what remains is the need for RDOS in order to make the hardware useful. Neither is applicable here, and those are, as I've said, the linchpins of the opinion. The similar context has no value without the moving parts--just as the opinion says, the existence of alternatives would almost certainly have reversed the decision. Data General stands out alone, an oddity of an opinion with few citing references, hinging on operative facts that almost never happen. It's deceiving to view the similar circumstances and think you're on to something when it's simply not the case--a common trap for the uninitiated.
However, that doesn't mean they have the right to prohibit it either.
If it is not being sold, it is ipso facto prohibited.
Right, but I do have the right to buy it in the form that Apple is offering it, and then modify it to suit my needs.
You have the right to purchase a copy for your Macintosh. You have no right to prepare or distribute a derivative work. Those rights are expressly reserved by Apple.
However, I argue that in this case it ought to be allowed, because the modification is functional (rather than creative) in nature.
There is no such dichotomy. A functional adaptation more than passes the bar to copyrightability, and thus, infringement.
They're claiming that there's a rule that the use can't be restricted.
Of course it can be.
the principle of private ownership of property!"
A principle not applicable to property rights not owned by the individual in question.
But OS X is being offered to an audience outside the group of Mac owners. You don't have to prove you own a Mac before the salesperson will allow you to buy it, after all.
It is not being offered to anyone but Mac users. It is available for purchase, which is entirely different.
Not having to provide proof is a benefit for everyone. Your argument, as others, begs for the application of invasive sales procedures and DRM, while you condemn such practices from the other side of your mouth. Here you have a company trusting the consumers to honor its terms, proving that you can't be trusted to do so. It's simply not a right you possess. Nothing is imposed after the sale. The contents of the box don't magically change--it was there from the start. That you don't like it is immaterial.
it's that Apple isn't allowing such use at all.
They're under no obligation to do so, particularly because authorizing such use comes with it consumer protection mandates requiring warranty and support. They are not permitted to sell a retail product "as is", and the compliance costs are not something Apple is interested in taking on.
If what you want to buy is not available in the form you want, too bad. They don't have to sell it to you, and you don't have any right to take it.
Even if Psystar wins, the decision would do nothing to diminish the legality of giving discounts to repeat customers.
Au contraire, that is the entire basis of their counterclaim. They are claiming a nonexistent per se rule that the sale of their OS cannot be restricted. Period.
There is no per se prohibition on tying. There is no prohibition at all on promotional tying. Offering a product based on the existing ownership of a qualifying product does not mean that the product has to be offered to an audience outside that group at any price, let alone the favorable price.
They should NOT be paid for things that they no longer create. Copyright should not be a license to print money, as it is now. It should be a license to make new things without fear of being ripped off immediately, and that's it.
It does not and cannot work this way. Artists don't get paid until the work is created, unless they are preparing a work for hire and have negotiated advance payments.
Copyright is not a license to print money any more than your job is a license to print money. The money must come from somewhere. It does not promote the useful arts to allow others to profit from a third party's work. If there is money to be made, then it is naturally the author who should be entitled to make it. Copyright has always been intended to lapse after the work has been fully and readily disbursed, in contrast to patent terms, which lapse sooner to encourage the profit of others.
The only possible similar complaint with copyright is in the preparation of derivative works, such as someone desiring to make further Harry Potter stories while doing so is still profitable. This poses two immediate problems: it is a bald attempt to capitalize financially, not artistically, on the work of others and more fundamentally, it betrays the integrity of an artistic world--a concept less respected in America than most other IP systems.
The bottom line is that enrichment of the public domain was never meant to be immediate or timely, but rather for posterity's sake. Video games don't have that kind of lifespan, as nostalgia strikes the adults of that generation. It's certainly worth considering an abandonware exception, but it's a quirk of the medium, not of the law.
However, you have no legal or moral right to force me to not sell your product after I have legally purchased it from you, or someone you have authorized to sell it.
Absolutely. But if what you are doing is not reselling, then this is a moot point. Psystar is free to purchase the retail boxed copies at $129 and then to sell those retail boxed and still shrinkwrapped copies to whomever will buy them.
But the issue of sale becomes moot as soon as the package is opened and installed on a system.
Once you put an item on the market, your control of it is gone. If you do not like that, do not sell it.
Indeed. Fortunately, however, OS X was never put on the market. Apple also never sold any of the rights except the limited set it did make available for sale. Those rights are described statutorily (in copyright law) and in the terms of the license agreement. Apple, Microsoft, Adobe, Ford, or the company of your choice places something up for sale. You cannot acquire more than was sold to you.
In the case of OS X, the price you paid bought you a right to use, possess, and resell a copy of the operating system on a Macintosh computer. If you want to do something beyond that, that's something you need to go back to Apple and purchase from them, because you don't have it until you buy it.
The right of first sale arguably trumps Apple's EULA.
Neither "trumps" the other because there is no conflicting overlap. Resale rights have nothing to do with the scope of rights.
The only place there would be a conflict would be if the EULA expressly forbade you from selling your complete set of rights to someone else. Then, it would presumably (but not without exceptions) violate DFS. Short of that, it's a non-issue.
You've got the right idea, but you're applying it backwards.
Because it is now an open and popular platform, the existence of substantially similar and functionally equivalent alternatives actually makes a stronger case for Apple.
Consider Data General. The linchpin of the decision was that the CPU was useless without the OS--that without the tied product, the tying product had no utility. Without that detail, the decision does not work. It's very different from the case of a bundle of an x86 computer system and an x86 OS. There are dozens of compatible operating systems and dozens of compatible hardware manufacturers. You don't have a paperweight when you buy any kind of computer, because you don't need a specialized OS to run it. Apple and Psystar are missing the critical element of Data General and Digidyne.
Attempts to reverse it, such that the tying product is the OS are amateur at best. The OS does not come with a computer attached. It is sold as an accessory and upgrade by a company to existing users of that same company's products. There's no requirement of a purchase when you buy the OS--it's not being tied. The sale is premised on the existing possession of a Mac, but this is nothing new. Upgrades are always sold in this manner; it's not unique to software, either.
It's promotional availability: buy one, get one free. You can't say that you can't get the tied product (the free item) unless you buy the non-free one. Promotional tying is also quite common in bundle packages, e.g., toothpaste with a toothbrush for $5, while the toothpaste alone is $4 and the toothbrush alone is not available for sale. You can't demand the toothbrush for $1. There are thousands of examples of favorable pricing or special product availability based on a prior purchase.
That Apple chooses to sell OS X at a particular price, for its existing customers only, simply does not require that that price be made available to anyone else. The same can be said of Microsoft and its OEM and upgrade pricing policies, and the same can be said for companies who condition the sale of accessories, add-ons, upgrades, etc. on the prior purchase of the underlying product.
It is not immoral or illegal to set the terms under which you will or will not sell something. It further is not incumbent on that party to devise a foolproof system--the argument that an individual can buy one off the shelf and finagle an installation out of the disc is not convincing. It's an argument that seems to be begging for invasive sales procedures and DRM. Apple offers owners of its computers a good product at a low price and trusts consumers to honor that.
Showing up to say that Apple is getting what it "deserves" by having a desirable product at a below-cost price, sold over the counter without restriction or complication, and that Apple's business model is not their concern is exactly why corporations hate consumers, especially the kind that often populate this forum.
They aren't trying to sell Apple's OS as they're own, they're trying to stand up to Apple's bullying that immorally
This is what's so laughable about the whole thing: OS X costs $129 and Windows $299 not because Apple is less greedy than Microsoft, but because the customers for whom it is intended have already invested in the platform R&D.
The only logical result is the discontinuation of the favorable pricing given to Apple customers. Take a look at any tying case that talks about the theory--promotional tying is not barred, nor is tying per se illegal. It shouldn't be. Favorable pricing for prior customers is one of the benefits one expects from being a repeat customer, and supporting this line of reasoning supports it being banned as anticompetitive. Those posters on Slashdot making points like yours are so painfully short-sighted that it's no wonder consumers are treated with disdain.
You're cutting off your nose to spite your face.
says you can't run their OS except on their hardware.
In exchange for which, you get a price far lower than what it actually costs. OS X retail sales don't even account for 1% of Apple's revenue--and account for a scarcely larger fraction of OS X support, R&D, and other ongoing costs. They give their customers a favorable price, because the customers support them through their hardware and continued business. It's not a product that supports itself in the retail channel. Being a company with a smaller potential number of copies, the per-license cost of OS X should be greater than Microsoft's.
Apple chose not to sell the upgrades at this price, because its financial success allows it to conduct those transactions at a loss. Opening that favorable pricing to everyone destroys both the incentive and the value. Psystar is not contributing to the actual costs, but rather taking advantage of a promotional price for existing customers and using it for their financial gain, knowing full well that it represents a loss to Apple. Media attention is the only motivation for the legal action.
Simply put, they're under no obligation to sell to others at all, and especially not to do so at a loss, even if they choose to offer such prices to their own customers.
A distinction without a difference. How one chooses to be paid is not a significant difference. If the value of the work is $500,000, then whether it is paid in one lump sum, a salary over five years, or through the use of a royalty system is irrelevant to the law.
being that they need to continue showing up to work in order to get paid
Whereas the artist doesn't get paid until after the work is complete, often with sizable debts facing him and questionable prospects. It's a high risk field, which is why the value of the work exceeds the sum of its parts. It must compensate for all the failures along the way.
Even the sculpture example is different, since there is only one
Again, not relevant. Whether it's a small sculpture, from which molds and replicas are made, or a giant sculpture made for exhibition or a work made for hire, the value is what the market will bear, for as long as the market will bear it.
If everyone followed this logic then nothing would ever change.
Nonsense. If everyone followed this logic, then the business model would be dead. Media goes where the money is--people still buy the works from these labels, which means they want them, which means they have no incentive to change.
What about "If you don't like your government then you're free to choose another country to live in"?
A colossal, but unsurprising, failure of parallelism. The issue isn't protest or disagreement--it's flagrant abusive tactics and simple, unbridled greed stemming only from a sense of childish entitlement. Music, movies, and art are not essential utilities. They're not required at all. If you don't like it, do without. Don't dare try to make this a human rights issue.
First, citation needed. Second, "Life of the author" is a shitty measure because:
First, the only citations you need are to the relevant US Copyright Acts. Look them up. It's clear you haven't, because, "life of the author" is not the exclusive measure.
It discriminates against people who create late in their life.
That's why the term is Life plus 70 *OR* 95 years.
2. It makes determining whether a given work is copyrighted difficult if the author is obscure.
You need only know the publication date or to contact the publisher or the publisher's successor. It's not that complicated.
3. What happens if an organization holds the copyright? Does it ever expire?
Yes. The term is the life of the author plus 70 years or 95 years from publication. If it's a work for hire, the term of copyright is 120 years. The fact that you don't even know this and somehow others think this is somehow insightful only further exposes Slashdot's parody-worthy bias and ignorance.
Why we should preserve the benefit of authors' descendants at the expense of society when the authors are long dead?
Because that is what survivorship is in this country. If you don't agree with it, you must change the fundamental principle, not arbitrarily rail against one of its manifestations.
The discussion is not about the 95% of people but the 5% elite of "content producers" that long copyright creates.
The rant bore no such limitation.