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Psystar Loses Appeal In Apple Case

timothy posted about 3 years ago | from the sir-can-I-have-another dept.

OS X 258

The dispute between Mac cloner Psystar and Apple has been a long and twisty one; now, reader UnknowingFool writes that "Last week, the U.S. Ninth Circuit Court of Appeals ruled mostly against Psystar in their appeal of their case with Apple. The Court found for Apple in that they did not misuse copyright by having conditions in the OS X license. Psystar won on one point in which some of the court orders should have not been sealed."

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Challenge - Ignore Apple on Tuesday (-1)

Anonymous Coward | about 3 years ago | (#37584004)

The Apple win in the Psystar lawsuit was ok.

But that carrion Apple CEO actions against Samsung was too much.

Challenge - Ignore Apple on Tuesday!

For how long do you think one can ignore the new Apple Galaxy S II?

Oh, darn, it will just looklike one. Let us hope Samsung sues those Apple iPhone V wannatoos to S Korea.

BOYCOTT iPHONE V

Re:Challenge - Ignore YOU everyday (-1)

Anonymous Coward | about 3 years ago | (#37584260)

Derp.

Sorry no. Ain't gonna happen.
Best selling Smartphone ever? iPhone 4.
Sorry. Just a fact. (InB4 fandroids : we are talking individual phones not total Operating System market share combining hundreds of devices from dozens of companies)

iPhone 5 will sell even more. Trufax.
No one cares about Samsung Fanbois. Except Samdung Fanbois.

Re:Challenge - Ignore YOU everyday (0)

bdenton42 (1313735) | about 3 years ago | (#37584666)

Symbian, while declining, still outsells iPhone by a pretty respectable margin.

Overall iPhone has only an 18% market share [slashgear.com] but I'm sure there is some other excuse why iPhone is actually #1.

Re:Challenge - Ignore YOU everyday (0)

Anonymous Coward | about 3 years ago | (#37584794)

Symbian is dead and shrinking(!!) rapidly at a rate of 16% per year. Even Nokia gave up Symbian and stopped developing it. Which sane person buys Symbian these days??

And again a fandroid is unable to read and differentiate. iPhone IS #1 as individual phone. The mistake fandroid are doing all the time is to confuse phones with OS. Android is not a phone. Neither a company or phone maker. It's just an OS. Yes. Android is #1 in OS, that does't contradict the fact that iPhone is the best selling phone. To understand that requires logic. Asking too much? Sorry.

Same applies to Symbian. Symbian is an OS. Not a phone. iPhone is a Phone, not an OS.

Yes, Virginia. iPhone is the most successful single smartphone. No matter how you try(!) to argument. In fact you are not giving any argument.
Tell me ANY other smartphone that sells more than iPhone 4. There is none. Again : Neither Android nor Symbian is a phone and it's total market share is irrelevant for an individual phone maker or single phone model.

That's too bad... (1)

bhartman34 (886109) | about 3 years ago | (#37584012)

...but not really unexpected. Apple does have good lawyers.

Re:That's too bad... (4, Insightful)

MightyYar (622222) | about 3 years ago | (#37584042)

It's not too bad - what do you think would happen to Linux's GPL if the court had ruled that all you have to do to ignore the distribution license is buy it from someone else? You can't just buy a copy of an OS, make a copy, and then sell the copy. For that you need a license. In the case of Apple, they obviously won't give Pystar a license. In the case of Linux, the GPL allows you to do this - but then you need to provide the source in a reasonable way.

Re:That's too bad... (3, Insightful)

EdZ (755139) | about 3 years ago | (#37584084)

You can't just buy a copy of an OS, make a copy, and then sell the copy.

As I understand it, this would only apply in Pystar's case if "installing OS X from it's original media" counts as "making a copy". IIRC, they purchased install media from Apple, installed it to non-apple hardware, then sold the hardware and the install media together.
So far as I can tell, selling the bare system, the install media, and the method of installation alltogether as a bundle should be A-OK (install media under first-sale), but pre-installing it then selling the same thing is somehow doubleplusungood.

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37584134)

Buy your guns, and get your bullets free!
Only by pulling the trigger of a loaded gun can set you up for a murder charge.

Re:That's too bad... (1)

hedwards (940851) | about 3 years ago | (#37584148)

It's much worse than that, it means that I can't buy a copy of OSX and install it on my own non-Apple hardware without violating their EULA which is now legally enforceable. What's more the court chose to look the other way as the software was being advertised as being sold when really it's being licensed and as a matter of course stripping a significant amount of consumer rights in the process.

I'm sure this will make those free market morons happy that consumers have even less choice than they previously did if they wanted to use OSX as this ruling effectively bans Hackentoshes as well.

Re:That's too bad... (1)

Anonymous Coward | about 3 years ago | (#37584250)

Thats why I pay for all my software with "Licensed Money". Its completely worthless and imaginary just like their software licenses.

Where I live its also just as legal as an EULA.

Re:That's too bad... (2, Insightful)

betterunixthanunix (980855) | about 3 years ago | (#37584274)

I'm sure this will make those free market morons happy

Have you ever carried on a conversation with a libertarian or an objectivist, or whomever else you might classify as a "free market moron?" They would tell you that Psystar was in the right, that Psystar was contributing in a positive way to the economy and to technology (by lowering the price of hardware needed to run Mac OS X), and that Apple is abusing the justice system by using it to attack a legitimate competitor.

Re:That's too bad... (1)

thecrotch (2464404) | about 3 years ago | (#37584564)

You're not doing your side any favors by calling people with a different political ideology 'morons'. It makes you look pretty intolerant and judgmental.

Re:That's too bad... (1)

omfgnosis (963606) | about 3 years ago | (#37584630)

The person you responded to quoted the parent post, you are complaining to the wrong person.

Re:That's too bad... (1)

Anonymous Coward | about 3 years ago | (#37584284)

Your definition of a free market is it odds with the actual definition of a free market. If we had a free market, Psystar could continue doing as they liked. In this case, government action has made the market less free.

If you're going to go out of way to disparage an ideology, at least have a damned clue about it first.

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37584346)

I don't think you can call a lawsuit filed by Apple "Government action"

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37584420)

The "Government Action" was the ridiculous verdict.

Re:That's too bad... (1)

stevedog (1867864) | about 3 years ago | (#37584454)

No... But i'm pretty sure you can call a decision by a court that, especially an appellate one.

Re:That's too bad... (3, Insightful)

RotateLeftByte (797477) | about 3 years ago | (#37584310)

If you install your legally bought copy of OSX on some non apple hardware then probably yes it is illegal.
However,
  making your own hackingtosh is not going to worry Apple. The words 'small fry' come to mind.
Paystar were trying to make a business out of it.
That was big enough to get Apple's attention.

In some ways this is similar to HP. you can get a 'hobby' license for VMS for free. Use that free copy of VMS on a commercial venture and the HP lawyers will be after you.

In some ways this is similar to Oracle. you can download a copy of their RDBMS for free. Use that copy in a production environment and Oracle's lawyer will be after you.

Notice a pattern?

Re:That's too bad... (1)

UnknowingFool (672806) | about 3 years ago | (#37584444)

Um no. If you followed any part of this case what it says is that Apple like any software developer like Linus or Microsoft can impose conditions on the use of their software. In the case of Apple you cannot modify and resdistribute without their permission. In the case of the GPL, the source code of modifications must also be released. It does not affect Hackintoshes other than Apple does not have to support OS X on those boxes.

Re:That's too bad... (0)

mrchaotica (681592) | about 3 years ago | (#37585046)

Apple like any software developer like Linus or Microsoft can impose conditions on the use of their software.

And that's exactly the problem: no other seller can dictate how "their" product is used; why should software developers be any different?

Moreover, EULAs should be legally worthless by their very nature, because the transaction on which they purport to impose their rules already happened before the buyer was presented with the terms. In other words, the buyer already owns the software, so he doesn't need any additional permission to use his own property.

The court should have ruled in favor of Psystar because copyright law is only supposed to kick in when somebody actually makes a copy, and Psystar didn't do that (installing the software doesn't count; there's a specific exception in the law allowing that).

The GPL is different because it is not an EULA, but rather a distribution license which only kicks in when the licensee does something that would otherwise violate copyright law. Mere use of GPL software does not require acceptance of the GPL!

Re:That's too bad... (1)

mrchaotica (681592) | about 3 years ago | (#37584970)

I'm sure this will make those free market morons happy...

They'd have to be morons indeed to be happy about this most emphatically anti-free-market ruling!

Non-moronic free-market advocates understand that government restrictions such as copyright itself (let alone constructs derived from it, such as EULAs) make the market less free.

Re:That's too bad... (1)

Nursie (632944) | about 3 years ago | (#37584086)

Is that what Psystar were doing though?

Is it really as cut and dried as them buying one copy and selling multiple copies from that?

I thought they bought one copy *per customer*, installed and shipped it to that customer. The only transgression was that they installed it on non-apple hardware.

Re:That's too bad... (1)

hedwards (940851) | about 3 years ago | (#37584162)

The nub of the case is that Apple licenses the software rather than sells it and has the right to control how the copy is used even after they sell it to the customer. Which is bullshit, bordering on fraud considering how the products are being advertised, but ultimately is now precedent.

The only upside to this is that if they're licensing the OS rather than selling it, those that lose their discs or where the discs are damaged should be able to make new copies from a friend to replace their disc or back up their discs for safe keeping as they're licensed rather than bought.

Re:That's too bad... (1)

RobinEggs (1453925) | about 3 years ago | (#37584240)

The only upside to this is that if they're licensing the OS rather than selling it, those that lose their discs or where the discs are damaged should be able to make new copies from a friend to replace their disc or back up their discs for safe keeping as they're licensed rather than bought.

Ha! That's a good one!

You didn't think logic and the good of the consumer mattered in intellectual property law, did you?

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37584292)

The nub of the case is that Apple licenses the software rather than sells it

In other words, exactly like every other software vendor. People aren't really stupid enough to believe that when they pay couple hundred bucks (or whatever it is) they actually OWN the software, are they? They own a COPY of the software, not the software itself. Just like when you buy music, movies, books, etc..

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37584452)

Your analogy is flawed.

What is stopping DVD and Bluray producers from *licensing* the discs?? Then Sony could stipulate, "You are only authorized to play Sony Movie DVDs on Sony players. Violation of this term is punishable by $5,000 per infraction."

That's how insane this thing is.

Re:That's too bad... (2)

omfgnosis (963606) | about 3 years ago | (#37584688)

They do license the discs. You are only allowed to use them in certain ways; it's not as restrictive as "you must use Sony players", but it does restrict use to exclude things like copying, distribution, public performance and so on.

Re:That's too bad... (1)

burris (122191) | about 3 years ago | (#37585028)

How about a book? Can I publish a book with a license printed on it that says "this book may not be resold for more than $1" ?

How about a CD? Can I print CD's that say "for promotional use - not for sale" then sue someone who sells them?

Re:That's too bad... (1)

bws111 (1216812) | about 3 years ago | (#37585090)

Don't know about your first example. Your second example is in fact common practice, so no need for a 'what if'.

However, I must point out that your book comes with an implied license - you are allowed to read it. You are not allowed to make a movie of it. You are not allowed to make an audio recording of it.

Re:That's too bad... (1)

mrchaotica (681592) | about 3 years ago | (#37585096)

it does restrict use to exclude things like copying, distribution, public performance and so on.

Copyright law itself does that, you dipshit!

Sony has no right -- or at least, didn't have any right until this terrible precedent was established -- to tell you how to use your own property within the bounds of the law.

Re:That's too bad... (0)

Anonymous Coward | about 3 years ago | (#37585174)

Speaking of dipshits, copyright law itself says that the copyright holder has exclusive rights, with a few exceptions. Everything outside of those exceptions is controlled by the copyright holder.

Re:That's too bad... (1)

omfgnosis (963606) | about 3 years ago | (#37584672)

But according to Apple's claims in the lawsuit, which the courts agreed with, you do not own a copy of the software. Presumably you own the physical materials, but the bits on the disc remain Apple's property and you are only allowed to use them according to terms Apple sets. This is no different from any other software license, except that until this case the enforceability of EULAs was in legal question.

Re:That's too bad... (1)

Christian Smith (3497) | about 3 years ago | (#37584886)

What I don't understand is how were Psystar considered the "end user"? Surely they are just a reseller? Or are middle men banned under Apple law?

Re:That's too bad... (3, Interesting)

UnknowingFool (672806) | about 3 years ago | (#37585036)

They were resellers; however, they didn't merely resell unopened OS X boxes. They also modified OS X to run on non-Apple hardware and sold them along with the unmodified boxes. The unmodified boxes are not copyright infringement; the modified OS X was. In the Apple, Psystar did not contest that they violated Apple's copyrights when they did so; they said that Apple imposing conditions on their license violated First Sale. The court of Appeals noted that OS X like many software is not bought but licensed therefore First Sale does not apply.

Re:That's too bad... (2)

UnknowingFool (672806) | about 3 years ago | (#37584502)

The nub of the case is that Apple licenses the software rather than sells it and has the right to control how the copy is used even after they sell it to the customer. Which is bullshit, bordering on fraud considering how the products are being advertised, but ultimately is now precedent.

Hello? That is exactly how everyone from MS to IBM describes their software. The court of appeals noted that. Why single out Apple for something the entire industry does. Even in the case of open source software, it is the same. You don't own GPL software; you license it.

Re:That's too bad... (0)

mrchaotica (681592) | about 3 years ago | (#37585160)

Even in the case of open source software, it is the same. You don't own GPL software; you license it.

THIS IS NOT TRUE!

You are not required to have a license to use GPL software; if you obtained the copy legally then it is yours, you own that copy, and you can do whatever you want with it within the bounds of copyright law. In fact, all software -- indeed, all products -- worked this way until this ridiculous court ruling.

To illustrate exactly how ridiculous this court ruling is, imagine if cars were "licensed, not sold" like this: Ford could force you to only buy Ford-brand gasoline, or Toyota could disallow you from driving on Japanese holidays, or any automaker could impose whatever absurd anticompetitive conditions it wanted.

You only need to license GPL software when you want to go beyond the bounds of copyright law (i.e., do something that would otherwise be illegal, such as making a copy).

Re:That's too bad... (1)

bws111 (1216812) | about 3 years ago | (#37585194)

Need we point out that this lawsuit was against a distributor, not a user, of the software. In other words, this is the EXACT sort of case that the GPL relies on.

Re:That's too bad... (1)

UnknowingFool (672806) | about 3 years ago | (#37585202)

You are not required to have a license to use GPL software; if you obtained the copy legally then it is yours, you own that copy, and you can do whatever you want with it within the bounds of copyright law. In fact, all software -- indeed, all products -- worked this way until this ridiculous court ruling.

So I modify any and all GPL software and redistribute without releasing the source code. According to you I don't have to follow the GPL at all as I own whatever code it contains. Wouldn't that make the GPL useless? Copyright law is clear on this point; you must get permission of the copyright owner if you want to modify and redistribute. In the case of GPL, there are certain restrictions if you want to modify and redistribute. Apple does not license OS X to anyone to modify and redistribute. MS allows OEMs to modify and redistribute only in certain ways.

Re:That's too bad... (1)

TheRaven64 (641858) | about 3 years ago | (#37584110)

The problem is the definition of copy, and this is where we get into the mess of EULAs. You should not need a copyright license to use a product that you purchased for its intended purpose. OS X does not run from the install DVD, it needs to be copied onto a hard disk to run. This technicality is what allows the EULA to exist. The court found that this is not a misuse of copyright, which means that it's a strong legal precedent saying that you can put any term in the EULA that you want. This is a problem.

I'm struggling to think of how this could apply to something like the GPL. If you buy some GPL'd software and install it, then violate the GPL post-installation, then you might have a problem, but the GPL only ever restricts your ability to make copies (because it's a distribution license, not an EULA), so it doesn't really fall into the same category. I suppose the closest analogy would be selling a Linux laptop with nVidia drivers preinstalled, which would be violating the GPL. Personally, I wouldn't have a problem with it being found that the GPL couldn't enforce this restriction, but I suspect a lot of FSF types would...

Re:That's too bad... (1)

fuzzyfuzzyfungus (1223518) | about 3 years ago | (#37584170)

While it likely would have shot their prices to hell(at least without larger economies of scale than Pystar was ever likely to have), I would have been very interested to see the legal showdown had Pystar simply made it utterly trivial for the end user to violate the EULA; but simply performed a legitimate resale themselves...

Image, for sake of hypothesis, that they had purchased a legitimate retail DVD, for each system, loaded it into the system's optical drive, and then slapped a skeletal little scripted automation partition on the HDD that loaded itself into RAM and did the install on first boot(or, if that wasn't possible, a microcontroller-driven USB dongle emulating a mouse and keyboard, and playing back all the inputs required for an install should be doable for ~$10-$20, possibly less in volume)...

Apple would still have been Deeply Unhappy; but Pystar would have simply been re-selling DVDs they purchased legitimately, which would seem to be entirely OK under the beleaguered-but-not-dead-yet terms of first sale...

Re:That's too bad... (1)

bill_mcgonigle (4333) | about 3 years ago | (#37584596)

I suppose the closest analogy would be selling a Linux laptop with nVidia drivers preinstalled, which would be violating the GPL.

Why wouldn't that fall under the system libraries exception?

Re:That's too bad... (1)

icebraining (1313345) | about 3 years ago | (#37584758)

I suppose the closest analogy would be selling a Linux laptop with nVidia drivers preinstalled, which would be violating the GPL.

Hmm, what about almost every Android phone, which come with proprietary kernel modules? I don't think the whole distro becomes subject to the GPL just because it has a GPL kernel.

Re:That's too bad... (1)

burris (122191) | about 3 years ago | (#37585110)

OS X does not run from the install DVD, it needs to be copied onto a hard disk to run. This technicality is what allows the EULA to exist.

Wrong, see 17 USC 117 (a). The license agreement exists because the software publisher puts it there.

The court found that this is not a misuse of copyright, which means that it's a strong legal precedent saying that you can put any term in the EULA that you want.

No, the court found there was no misuse of copyright because the terms did not prevent Psystar from creating their own software or hardware. It doesn't mean they can put whatever they want in their license.

We con- clude that the district court correctly ruled that Apple had not engaged in copyright misuse. As we will explain, this is prin- cipally because its licensing agreement was intended to require the operating system to be used on the computer it was designed to operate, and it did not prevent others from developing their own computer or operating systems.

Re:That's too bad... (1)

e70838 (976799) | about 3 years ago | (#37584406)

"You can't just buy a copy of an OS, make a copy, and then sell the copy. For that you need a license."
No !
Trade laws define the rules that protect consumers by defining their rights and obligations. Even if many politicians are corrupted, this limits the way consumers can be screwed.
A EULA can not restrict, it can only extend our rights. Otherwise, it is outlaw.
Vocabulary shift is the general way to manipulate. License if the term used by the bad guys. When I go to the store to buy a software, I do not rent it and I may use it in any legal manner.

Re:That's too bad... (2)

MightyYar (622222) | about 3 years ago | (#37584542)

I do not rent it and I may use it in any legal manner.

That's just not true.

Copyright itself is completely artificial - don't look for any sense of order or justice in it. Humans share information naturally - it is unnatural to restrict it.

In that context, why are you arguing with these judges on the interpretation of the law? Maybe the law should be changed to do as you say - only allow the EULA to extend additional rights. I'm fine with that. I happen to think non-commercial copyright should be abolished and commercial copyright should be set to a short term, like patents. Yeah, this would screw up the GPL, but I think it would be worth it.

They didn't need good lawyers (3, Informative)

msobkow (48369) | about 3 years ago | (#37584072)

There was never any question that Pystar was in the wrong. Their activities were blatantly and obviously illegal.

Their whole market was based on selling hardware to run software that wasn't licensed to run on that hardware.

Their lawyers would have had to be completely incompetent buffoons to lose the case.

Re:They didn't need good lawyers (4, Insightful)

hedwards (940851) | about 3 years ago | (#37584120)

AFAIK this is the first instance where a court has backed Apple's ridiculous claims that they can tie the use of their OS to their hardware by simply adding a clause to their EULA. In the past it wasn't possible for the simple reason that they were using an incompatible architecture.

I'll interpret this as I should, evidence that the justice system in the US is broken and desperately in need of reform.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584198)

What kind of reform do you suggest...that license agreements between parties shouldn't be held to mean what they say?

Re:They didn't need good lawyers (1)

guises (2423402) | about 3 years ago | (#37584328)

That a EULA shouldn't carry the same weight, if any, that a real contract carries.

You are, doubtless, one of those people who has dedicated most of their lives to reading EULAs. That's admirable. For everyone else, they cause real problems - it's not possible to both keep up on what all they want you to agree to do, and get anything done. Even with a real contract in those instances where you actually do read the agreements and object to what they contain, it's often not possible to find a competing service without those clauses.

Just to give an example: let's say you'd like to open a bank account. You read the contract and figure you can live with it until you get to the bottom and see "Bank X reserves the right to change this contract at any time." So you move on the Bank Y and Bank Z and find that they have the same thing. What do you do now? Be the kook without a bank account? It's not going to work out for you.

This is where the idea came from that there are certain rights that can not be forfeited, no matter what you sign. This allows people to cope with everyday life without needing to worry too much about what the bad people are trying to do to them. Protections are weak in the United States, but consumer protection laws are pretty strong in some countries.

So Phystar acted on the theory that if they bought the software they should be able to use it how they want and not just how Apple wants them to. It's a reasonable assumption and it may have worked in another country, but not in the United States.

Re:They didn't need good lawyers (1)

TrekkieGod (627867) | about 3 years ago | (#37584528)

What kind of reform do you suggest...that license agreements between parties shouldn't be held to mean what they say?

That software is sold, not licensed. Personally I don't like the idea that anyone can tell me where I can or can't install any software I buy.

Re:They didn't need good lawyers (1)

jo_ham (604554) | about 3 years ago | (#37584890)

Then I assume you also disagree with the GPLv3?

If Apple had lost this case then what chance does any other software licence have?

Just because you disagree with their terms doesn't mean you can just ignore them, or say a court is wrong for "siding" with them.

Re:They didn't need good lawyers (1)

TrekkieGod (627867) | about 3 years ago | (#37585120)

Then I assume you also disagree with the GPLv3?

If Apple had lost this case then what chance does any other software licence have?

Just because you disagree with their terms doesn't mean you can just ignore them, or say a court is wrong for "siding" with them.

Then I assume you also disagree with the GPLv3?

The GPLv3 is not a software license. It does not restrict the end user in any way whatsoever. It's a distribution license. If the courts declare it invalid, that doesn't mean you can suddenly go around using GPL code anywhere, it means you don't have the right to distribute it at all.

There's a fundamental difference here. I didn't say I'm against copyrights (although I am against infinitely long copyrights), and I have absolutely nothing against Apple dictating the terms of how copies of their software may be distributed. Even if they say, "you can't redistribute copies at all," which is what most people do. If Stallman created a GPLv4 that said, "you can't use proprietary software in conjunction with software using this license," then THAT would be equivalent to an EULA, and yes, I'd be very much against it.

Re:They didn't need good lawyers (1)

jimicus (737525) | about 3 years ago | (#37584784)

I can think of at least one way Apple could have dealt with this even if they hadn't relied on the EULA.

In order to have a useful business model, Psystar needed to advertise "runs Mac OS X". Which is a trademark of Apple. Obviously Apple aren't going to sue an authorised reseller for using their trademark, by Psystar were never an authorised reseller.

Other companies have already done something similar to kill grey-market products (cf. Sony and Lik-Sang, Levis and Tescos)

Re:They didn't need good lawyers (1)

jo_ham (604554) | about 3 years ago | (#37584874)

Cool, so I can take GPLv3 licensed software and make a Tivo box!

I mean, I don't have to actually follow the licence, right? That seems to be what you're saying.

I'll make my Tivo box and then sell it and I'll save money on the OS because I can get Linux for free.

Oh what's that? You want the source? Why should I give that to you? I mean, it says I have to in the licence, but I can ignore that, right?

Re:They didn't need good lawyers (1)

UnknowingFool (672806) | about 3 years ago | (#37585060)

So if MS copied parts from Linux, modified them and sold them without releasing any source code, you would support MS and not Linux. Because the GPL expressly forbids that kind of action. These clauses are not new to software.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584144)

What I'd like to know is what, if any, effect 17 U.S.C 117 does have in reality. By face value, it should mean the owner of a copy of a computer program is allowed to use the copy without infringing copyright, i.e. installation and copying to RAM should not result in infringing copies as long as you bought a legal copy of the software (as Psystar did), but has anyone ever won a lawsuit based on that point?

Re:They didn't need good lawyers (1)

crankyspice (63953) | about 3 years ago | (#37584266)

What I'd like to know is what, if any, effect 17 U.S.C 117 does have in reality. By face value, it should mean the owner of a copy of a computer program is allowed to use the copy without infringing copyright, i.e. installation and copying to RAM should not result in infringing copies as long as you bought a legal copy of the software (as Psystar did), but has anyone ever won a lawsuit based on that point?

Ownership is the issue. Most software is licensed (or so sayeth the EULAs, and while there's some disagreement in the authorities, the courts are generally agreeing; see, e.g., Vernor v. Autodesk, 621 F.3d 1102 (9th Cir., 2010) (en banc review declined; I don't believe there's been a decision yet on the petition for a writ of certiori to the Supreme Court). Opinion: http://caselaw.findlaw.com/us-9th-circuit/1537762.html [findlaw.com]

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584322)

If it is so easy to circumvent laws about selling things, all the while selling those things at retail stores, why don't book sellers do it? Or for that matter, sellers of home appliances?

"They" are just waiting...for this (0)

Anonymous Coward | about 3 years ago | (#37584490)

For years "They" have been waiting...for a moment much like this, where software EULAs are upheld against the Constitutional and personal freedoms of people.

Like after the DMCA was upheld against p2p, then car dealers started enforcing it for people who circumvented the computers on their own cars, this activist judgement may open the floodgates for the veritable end of free and unemcumbered ownership, of anything!

Wake up, people! Before it's too late!

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584182)

Licensed to run on that hardware? What does that mean? You think you can sell something and then dictate how anyone uses the thing you sold? And people still wonder why nobody respects copyright and other imaginary property...

Re:They didn't need good lawyers (1)

betterunixthanunix (980855) | about 3 years ago | (#37584226)

Their activities were blatantly and obviously illegal.

Really? When last I checked, they were building clones of Apple computers, and making it possible to install Mac OS X on those clones. How is that obviously illegal?

Re:They didn't need good lawyers (1)

hitmark (640295) | about 3 years ago | (#37584318)

I think he may be referring to using drive imaging to quickly provide preinstalled OSX (pretty much what HP, Dell and the rest do to have preinstalled Windows. And i suspect Foxconn also do so for the computers the produce for Apple).

Had they instead shipped the system with no OS installed, or installed each from the boxed copy they packed alongside (and bought legally from Apple), then Apple may have had a harder time showing breach of copyright.

Anyways, all this will be a moot point now that Apple will primarily sell new versions via the in-OS store. That way you can no longer get a boxed copy, and so need to get the hardware at some point. bye bye hackintosh...

Re:They didn't need good lawyers (1)

CrackedButter (646746) | about 3 years ago | (#37584944)

Apple provide a copy on thumb-drives and if I wanted to; with the copy I downloaded from the App store I have used it to install on other machines. People cleverer than me will get it to work on non-Apple hardware.

Re:They didn't need good lawyers (3, Informative)

msobkow (48369) | about 3 years ago | (#37584582)

The Apple license explicitly forbids installation on non-Apple hardware. You may not agree with those terms, but that does not give you the legal right to IGNORE those terms.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584750)

It does if they're legally unenforceable. While it now appears that they are, it was not unreasonable to test this.

Re:They didn't need good lawyers (4, Insightful)

vux984 (928602) | about 3 years ago | (#37584246)

Their activities were blatantly and obviously illegal.

violating a licensing agreement is not "illegal"

Their whole market was based on selling hardware to run software that wasn't licensed to run on that hardware.

The real problem is that Apple's market is based on selling software with terms that dictate what hardware you use it with.

What else can you SELL and then dictate how it be used to the customer? If I as a copyright holder sell you a copy of my CD do I get to dictate what brand CD player you use?

Yet apple gets to sell software, and then dictate what brand of hardware you use it with. And if you don't do as they say, then they argue the software is "unlicensed" (since when do you need a license to use something you bought?!). By "buying" it you have the right to use it.

But then if you install it you are making a "copy" and violating copyright law. And that makes it illegal.

Except that you don't actually need a license to install software you bought a copy of. The act of purchasing a copy gives you the right to install it.

You don't need an explicit license to put the software you bought on a hard drive for use, or for that copy to be copied into ram for use, or for portions to be copied into l1/l2/l3 cache for use, or for portions to be swapped out to disk during hibernation.

So it is absolutely an abuse of copyright law to argue that the copy Psystar made to install the software is unlawful "distribution".

That the courts went along with Apple's whole licensing installation copies farce is a tragedy.

Re:They didn't need good lawyers (1)

hitmark (640295) | about 3 years ago | (#37584338)

"(since when do you need a license to use something you bought?!)"

Since copyright got extended to industrially stamped audio recordings, at least. It is one of those dirty little topics that they do not want to talk about, that what your getting for your money is a time unlimited license to enjoy the recording in the format it is sold to you.

Re:They didn't need good lawyers (4, Insightful)

Telvin_3d (855514) | about 3 years ago | (#37584360)

What else can you SELL and then dictate how it be used to the customer?

Well, I'd think all software released under the GPL and similar licenses would qualify. Particularly GPL3 which was explicitly created to prevent released software from being run on non-compliant hardware. You don't like Apple restricting what hardware their software can run on? Fine, but any loss for Apple in that area is a direct blow to the enforceability of the Open Source license of your choice.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584600)

No. GPL puts zero restrictions on what you DO with the software. If you want to change it, you may need to distribute the changes, if you in turn make the service available to someone else. Notice the "if you make changes" part? That part is entirely out of the question with most proprietary licenses. How can you possibly compare these licenses? GPL gives far more freedoms to everyone, even the modifiers (who would otherwise be totally forbidden from modifying).

Re:They didn't need good lawyers (2)

jo_ham (604554) | about 3 years ago | (#37584908)

No. GPL puts zero restrictions on what you DO with the software.

So I can make a Tivo with it then? With a locked bootloader? Using GPLv3 software?

Re:They didn't need good lawyers (2)

Sancho (17056) | about 3 years ago | (#37584996)

No. GPL puts zero restrictions on what you DO with the software.

So I can make a Tivo with it then? With a locked bootloader? Using GPLv3 software?

When dealing with GPL zealots, you have to be very precise in your language, even when they are not.

Of course you can make a TiVo with a locked bootloader using GPLv3 software. What you can't do is distribute it.

But that said, distribution is something one DOES with the software, which means that the grandparent was also imprecise.

It's better to say that the GPL doesn't restrict what you do unless the thing you want to do is distribute.

Re:They didn't need good lawyers (1)

UnknowingFool (672806) | about 3 years ago | (#37585080)

No. GPL puts zero restrictions on what you DO with the software.

Have you actually read the GPL? One of the major restrictions is that if you modify and redistribute, you must also release source code of the modifications.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584610)

violating a licensing agreement is not "illegal"

definition illegal: not according to or authorized by law

A contract is an agreement entered into by two or more parties with the serious intention of creating a legal obligation or obligations, which may or may not have elements in writing.

Re:They didn't need good lawyers (2)

msobkow (48369) | about 3 years ago | (#37584732)

The act of purchasing a copy gives you the right to install it.

No it does not. It gives you the right to RETURN the software if you decide you don't agree with it's license. It does NOT give you the right to IGNORE the license.

Re:They didn't need good lawyers (1)

whisper_jeff (680366) | about 3 years ago | (#37584798)

So it is absolutely an abuse of copyright law to argue that the copy Psystar made to install the software is unlawful "distribution".

Um, what?!?!

That is pretty much the pure purpose of copyright law - to prevent people/companies from illegally copying your material and selling it on their own.

I know /. has its own view of what copyright should be but let's at least recognize what it actually is. Psystar didn't have a leg to stand on - they were making illegal copies of OSX and selling it. That is about as close to the the pure definition of copyright infringement as one can get.

Re:They didn't need good lawyers (1)

betterunixthanunix (980855) | about 3 years ago | (#37584948)

Except that I can buy a licensed copy Windows, install it on a computer, and then sell that computer to you without it being considered a violation of copyright law. The question here is whether or not Apple can use copyright law to prevent you from installing a licensed copy of Mac OS X on a computer without an Apple logo; the courts have ruled that Apple can do this and that it is not overstepping the bounds of copyright law. It was not obvious that Psystar could not installed legally purchased copies of Mac OS X on a non-Apply computer prior to this case, because it was not clear that a license that forbids such installations is legally enforceable.

Re:They didn't need good lawyers (1)

whisper_jeff (680366) | about 3 years ago | (#37585058)

But you cannot buy a copy of Windows, install it on 1000 computers, and then sell those to 1000 different users.

That. Is. Copyright. Infringement.

Odds are Apple wouldn't have been able to sue for copyright infringement _IF_ the versions of OSX on the systems had each been bought and paid for. They weren't, however. They were copies made from a single copy.

That. Is. Copyright. Infringement.

Really, is it that hard to understand?

Re:They didn't need good lawyers (1)

UnknowingFool (672806) | about 3 years ago | (#37585128)

Except that I can buy a licensed copy Windows, install it on a computer, and then sell that computer to you without it being considered a violation of copyright law. The question here is whether or not Apple can use copyright law to prevent you from installing a licensed copy of Mac OS X on a computer without an Apple logo; the courts have ruled that Apple can do this and that it is not overstepping the bounds of copyright law. It was not obvious that Psystar could not installed legally purchased copies of Mac OS X on a non-Apply computer prior to this case, because it was not clear that a license that forbids such installations is legally enforceable.

Technically you licensed Windows from the OEM. As a consumer, MS and OEM don't really care that you did so. However if you had a business that refurbished old computers, there are violations of the license agreement that come into play depending on who originally bought Windows. That's why many ebay sellers and second hand dealers wipe out Windows and explicitly tell you that the computer does not come with Windows installed.

The question was never if Apple can prevent consumers from installing on OS X on hackintoshes; it is whether Apple can prevent a business like Psystar from infringing on their copyrights by modifying and redistributing it without their permission. The same effect applies to other redistributions. Generally the courts are more permission of personal use and less tolerant of commercial use.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584402)

I disagree. When one goes out and buys a copy of OSX, much like buying a copy of a book, there is an implication that you can use that copy however you see fit. Upon purchasing a book I may burn it in my fireplace if I see fit; why should I not be able to use OSX on the hardware of my choosing? After all, Apple was paid for that copy at the price they set.
So, here's my interpretation: when Apple sells you a computer, you're really paying a hefty sum for the software; however, by tying the software to the hardware, Apple has made that cost hidden. Psystar's existence was illuminating this fact; rather than competing in the marketplace by a)raising the price of their software to reflect the real price or b) reducing the price of their computers, Apple chose to sue Psystar out of existence. I'm fairly certain that a lot of this reeks of antitrust issues. As in, way worse than IE/Windows.

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584474)

I disagree. When one goes out and buys a copy of OSX, much like buying a copy of a book, there is an implication that you can use that copy however you see fit. Upon purchasing a book I may burn it in my fireplace if I see fit; why should I not be able to use OSX on the hardware of my choosing? After all, Apple was paid for that copy at the price they set.

You are comparing book-burning with running OSX on a computer? I take it you're not a fan...

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584476)

Except you never bought a copy of the OS. You licensed from Apple, who can choose to license it to whomever they choose, under whatever terms they want. Don't like the terms, don't license it.

The /. crowd seems to simply ignore the fact that they haven't bought anything. Thy licensed it. You may not like the law but it is what it is. It's the same thing that protects open source. Licensing is a necessary evil, and Psystar attempted to treat a copy of an OS that they licensed as something they had bought. They did not have a license to resale the software from Apple, and no court in the country would see it otherwise.

They attempted to profit off of anthers license, they bypassed DRM in a way that was not meant to back-up the software, and they lost.

Go figure.

False advertisement (0)

Anonymous Coward | about 3 years ago | (#37584562)

Then two things

1. There should be big bold letters on *every* piece of software with a restrictive EULA: *YOU ARE NOT BUYING THE PRODUCT BUT MERELY A SINGLE USE LICENSE.
2. Media should be readily replaced by the licensor -or-
3. There should be a sizable discount offered.

I say we end EULAs altogether and just have distribution licenses, such as the BSDL.

Re:They didn't need good lawyers (1)

bws111 (1216812) | about 3 years ago | (#37585030)

There is no such implication when you buy a book, why do you think there is? Can you make a movie or play from your copy of the book? No. Can you read it aloud in public? No. Can you make an audio recording of someone reading the book? No.

You can do whatever you want with the physical 'book', such as burning it. What you can do with the contents of the book is very much restricted. Same with software - if you want to destroy the media the software came on, go for it. Nobody will stop you.

Yeah! (0)

Anonymous Coward | about 3 years ago | (#37584544)

If I buy a Stanely hammer through Home Despot, I fully expect that they will have the right to tell me what nails or polywood I have to use it with...

Re:They didn't need good lawyers (0)

Anonymous Coward | about 3 years ago | (#37584838)

Apple are selling a slightly modified Intel PC these days. Just enough changes to not be based around the BIOS, but the equally shit EFI ensuring standard PCI and PCI-e slots require double ROMs. The OS was lifted from a Intel UNIX clone. Apple are nothing but leeches, and yet when someone else does exactly the same to them, they buy legal decisions to shut down the competition.

Had Apple not done the Disney thieving process over the last few years, they'd be dead. So fuck off with you BS, you have not idea what you're talking about. Being an Apple zealot, are you HIV+ like your cult leader?

Apple should be able to do what they want! (0)

Anonymous Coward | about 3 years ago | (#37584142)

It's their OS - even if you bought it.

It took that long... (0)

Anonymous Coward | about 3 years ago | (#37584278)

...to establish that Apple has more money to spend on lawyers????

hypothedical question? (1, Interesting)

arbiter1 (1204146) | about 3 years ago | (#37584314)

What if Microsoft did this today or even years ago? I don't think they would got off Scott free like apple does on this crap where they limited their software.

Re:hypothedical question? (1)

Anonymous Coward | about 3 years ago | (#37584656)

Very interesting question. Did the very first IBM-PC clones initially license DOS or did they initially rely on just being able to boot IBM-PC DOS?

At some point, at at least very shortly after clones came in to existence, Microsoft licensed them to use MS-DOS. It was lucky that IBM had not reserved exclusive rights over DOS and Microsoft was willing to license it.

Other non-IBM computer clones of the time were sued out of existence for software and hardware licensing issues similar to Psystar.

Re:hypothedical question? (2)

jimicus (737525) | about 3 years ago | (#37584792)

Microsoft have already got legal history of being a monopoly.

Being a monopoly isn't per-se illegal, but abusing it is. So it wouldn't be a great stretch to say "the rules would be different for Microsoft".

Appple doesn't sell OS-X (3, Informative)

wesgray (1827286) | about 3 years ago | (#37584374)

Never read so much uninformed, belligerently ignorant drivel, by posters that don't know what the word license means, or even that Apple only distributes OS-X as an upgrade outside the purchase of a Mac system.

They used to sell full versions before Lion (2, Insightful)

Anonymous Coward | about 3 years ago | (#37584518)

When Snow Leopard released in 2009, you could buy both an upgrade option (~$29 and there were other assorted family packs of upgrades) and if you didn't have Leopard (10.5), there was a full version option (it was the Mac Box Set ~$169), which came with bundled with iLife and iWork since Tiger wasn't considered an upgrade option for the Snow Leopard installer. Tiger also had a full install box you could get for ~$199 back when it released a few years before.
It has only been with the new Lion release that they've gone upgrade only.
Your Apple history appears to be what is uninformed or is at least revisionist; you can even still get the full Snow Leopard installs off Amazon.
Psystar was doing their bundled installs before the upgrade-only download path was put together by Apple.
Now, I don't know if psystar was buying the Mac Box Set's or if they were just getting the $29 upgrade and selling it as 'full' . . . but I doubt it makes a difference since even the Mac Box Set wasn't intended to go on non-apple branded hardware; even with it being a full version.

Re:They used to sell full versions before Lion (2)

UnknowingFool (672806) | about 3 years ago | (#37585142)

No all retail versions of OS X are upgrades because all Apple machines since 2001 were sold with OS X installed. You can use it to do full installs in case you lose your HDD but they are considered upgrades. The only thing the disc detects is whether your hardware is Apple and if it is compatible.

Re:Appple doesn't sell OS-X (0)

Anonymous Coward | about 3 years ago | (#37584888)

I object to them being able to set terms on the use of the product they sell me. Selling it as an upgrade is just a legal technicality along the same lines as requiring approved hardware. It's really no different than selling you the hardware and requiring you to use their software.

Imagine a book publisher selling chairs that come with a copy of a new novel for use with that chair and you can only use it on that chair. Then later, the sequel comes out and they sell it. Oh, but, by the way, there is legal barf on the covers that says "Upgrade" and you can only use it with your existing chair.

It's fucking retarded. And you don't have to be 'belligerently ignorant' to think so.

Re:Appple doesn't sell OS-X (0)

Anonymous Coward | about 3 years ago | (#37584988)

So, what you're saying is that OS X is not, in fact, an upgrade over using Windows or Linux. Good to know. :)

To those opposed, what about software upgrades? (4, Insightful)

Zergwyn (514693) | about 3 years ago | (#37584586)

To my mind, software upgrades are an economically efficient and pro-user offering. They are good for both the production and use side of the equation, allowing users to pay directly for the additional cost of development since their last version rather then all the original work and value that went into the product. They allow developers to reward their own supporters and more efficiently allocate resources. Additionally, "upgrades" should be (again, from a user perspective) simply full versions, identical, except cheaper and for existing users. This is how all commercial software I use works as well.

However, the entire concept of upgrades depends completely on legal licensing: that I can have a clause that says "you may not use this unless you previously owned a full version". I already see a number of posts, both here on Slashdot and on other forums (such as the comments with the Ars Technica article on this story), that are enraged at the result, and that argue that Psystar was "adding value" by "lowering hardware costs". The underlying argument is that, if a piece of software is sold, that should be that. However, how do those of you who argue for that square it with upgrading? Do you simply agree with the App Store take, where upgrades don't exist at all? Or do you have some other way of squaring things away?

As things have existed, Mac OS X offerings have all been upgrades and have been priced accordingly. There seems to be a reasonable consideration on both sides here: buyers pay less money, but in exchange have the restriction of needing to have a Mac as Apple has chosen to build their development around an integrated model. Do some of you think that such integrated models should be illegal, regardless of what benefits they offer? Should Apple be required by law to sell a "full" version of Mac OS X, and would you actually be willing to pay what that might cost (ie., if they said "full version, $400")? I'm genuinely curious about people's thoughts around this.

Re:To those opposed, what about software upgrades? (1)

Sancho (17056) | about 3 years ago | (#37585022)

Honestly, genuinely, and without sarcasm, if we live in a country where we can be forced to buy health insurance, I think that Apple should be forced to sell full versions of their software. Once we throw freedom to engage in commerce as we see fit out the window, there are a whole host of pro-consumer regulations I'd love to see enacted.

9th Circuit is all screwed up (1)

burris (122191) | about 3 years ago | (#37584990)

They have Augusto, where a CD that is mailed to DJs with a sticker that says "promotional use only, not for sale" still counts as a sale and the doctrine of first sale applies:

Notwithstanding its distinctive name, the doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale. See 4 Patry on Copyright 13:15; see also United States v. Atherton, 561 F.2d 747, 750 (9th Cir. 1977) (“The ‘sale’ embodied in the first sale concept is a term of art.”). “[O]nce the copyright owner places a copyrighted item in the stream of commerce . . . , he has exhausted his exclusive statutory right to control its distribution.” Quality King, 523 U.S. at 152. The seminal illustration of the princi- ple is found in Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 341 (1908), where a copyright owner unsuccessfully attempted to restrain the resale of a copyrighted book by including in it the following notice: “The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at less price will be treated as an infringement of the copyright.” Id. The Court noted that the statutory grant to a copyright owner of the “sole right of vending” the work did not continue after the first sale of a given copy. Id. at 349-50.

Then they have Vernor/Psystar which says a box of software sold in a store like a book or CD is not actually a sale because Apple says it isn't and because Apple says there are restrictions on the ability to transfer or use it:

We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restric- tions.

I predict Vernor will fall if it makes it to the Supreme Court. It totally conflicts with Bobbs-Merrill vs. Strauss and 17 USC 109 and common sense. If it walks like a sale and talks like a sale then it is a sale.

Not that would help Psystar, they have other problems.

Re:9th Circuit is all screwed up (1)

UnknowingFool (672806) | about 3 years ago | (#37585172)

I predict Vernor will fall if it makes it to the Supreme Court. It totally conflicts with Bobbs-Merrill vs. Strauss and 17 USC 109 and common sense. If it walks like a sale and talks like a sale then it is a sale.

Just like Windows, AIX, Oracle, Solaris, etc, buying OS X is not a sale; it is buying a license. The Ninth Court says that these terms are clear in the license agreement. You may disagree but that is they way it has been forever. Just like downloading Linux is not owning it; the GPL also is a license.

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