[mdawson]

The copyright issue comes in because Psystar is altering the operating system so that it can run on generic x86 systems then reselling that modified copyrighted material without the copyright holder?s consent. In essence, what they are doing is no different than you or I reselling a copy of Stephen King?s The Stand after altering a few lines without permission from him or his publisher. Apple is in the same position that the movie studios were in when they had the courts shut down CleanFlicks, CleanFilms, Play It Clean Video and Family Flix when those retailers decided that they had the right to alter movies to fit into some puritanical definition of appropriateness.

As to the contract issue, you are correct that some EULA provisions have been successfully challenged. EULAs associated with audio equipment were shot down because such things are bought outright; when you buy a CD player ownership is transferred and you can therefore do s you please with that CD player within the bound of the law. The situation you cite was a violation of fair use. Copyright law guarantees the right of the consumer to make copies for personal use. (Now if someone would only bring a class action suit against the video content providers.)

Apple?s stipulation is for a licensed product that only Apple owns and anyone else installs and uses under contract. Apple?s EULA terms do not violate fair use; to the best of my knowledge Apple is not attempting to stop anyone from making a backup copy of an OS X DVD.

[smax013]

mdawson said:

The copyright issue comes in because Psystar is altering the operating system so that it can run on generic x86 systems then reselling that modified copyrighted material without the copyright holder?s consent. In essence, what they are doing is no different than you or I reselling a copy of Stephen King?s The Stand after altering a few lines without permission from him or his publisher. Apple is in the same position that the movie studios were in when they had the courts shut down CleanFlicks, CleanFilms, Play It Clean Video and Family Flix when those retailers decided that they had the right to alter movies to fit into some puritanical definition of appropriateness.

Not sure it is the same thing. In the case of the movies stuff, those companies were literally changing the content of the films such that it actually changed the "look and feel" or "story" of the film. In Pystar's case, they are not really changing the "look and feel" or "story" of Mac OS, but more circumventing Apple's included "DMA" type protections.

Thus, I am not sure they are technically violating the copyright, per se. That is what is up to the court to determine.

Even if not, it could still be tangentially a copyright issue if it violates the DMCA (you need not violate the copyright per se to violate the Digital Millenium Copyright Act).

But, then, I am not a lawyer...I only play one on TV! ;)

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As to the contract issue, you are correct that some EULA provisions have been successfully challenged. EULAs associated with audio equipment were shot down because such things are bought outright; when you buy a CD player ownership is transferred and you can therefore do s you please with that CD player within the bound of the law. The situation you cite was a violation of fair use. Copyright law guarantees the right of the consumer to make copies for personal use. (Now if someone would only bring a class action suit against the video content providers.)

Apple?s stipulation is for a licensed product that only Apple owns and anyone else installs and uses under contract. Apple?s EULA terms do not violate fair use; to the best of my knowledge Apple is not attempting to stop anyone from making a backup copy of an OS X DVD.

That does not mean that Apple's provisions on this issue are necessarily enforceable.

FWIW, I agree that from my "TV lawyer" perspective, I suspect that Apple will win. Apple would have a MUCH tougher time if they had a provision that said you can only run the Mac OS on their hardware...they would likely lose that one, but since they have Boot Camp, it is a non-issue. In the end, I suspect that Apple's restriction in their EULA is likely enforceable, but we won't know until a court rules on it...and while I believe Pystar is ultimately in the wrong and that a court will likely rule to that effect, I also believe that Pystar has every right to challenge that provision if they feel that it is unenforceable.

I will note that there is a chance that it might not be enforceable. What about a parallel case? Let's say that Micro$oft made a deal that they would only allow Windoze to run on Dell computers? Would that be an enforceable provision? It gets bit more murky in that case...but the only technical difference is that you have two companies rather than one who makes everything. But, the arguement would be the same...it is Micro$oft's product and you are only buying a license to use it and thus Micro$oft can decide how you can use it. And I don't know enough previous law cases (i.e. virtually no such knowledge) that would be on point to know if there is anything that would help or hurt that arguement.

[mdawson]

I pretty much have no issue with much of what you have written. You, I and others do no think that Psystar stands much of a chance. Apparently, based on the stories I have seen, neither do most legal professionals that have spoken out on this case save Psystar?s legal team. Things are going to get very interesting once the trial starts.

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smax013 wrote:

>

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What about a parallel case? Let's say that Micro$oft made a deal that they would only allow Windoze to run on Dell computers?

Actually, that is not a similar case for several reasons. Mostly, the difference is that Microsoft and Apple are not comparable companies.

First, Microsoft was not contracted by Dell to develop an operating system exclusively for Dell hardware. Second, what is now known as the Wintel platform is not proprietary; that is, PCs are made by countless OEMs and the (primary) operating system is licensed from Microsoft. No one owns the platform hence one or a few companies can legally lock it down (read: create a cartel, which is an anti-trust violation). Third, Microsoft is a software company that does not, nor have they ever, manufactured and sold their own brand of PC. Therefore, short of the first instance I cited, Microsoft cannot legally tie their OS to a particular PC brand (e.g., Dell) although they can, for technical reasons, make Windows only operable on systems with a certain CPU base.

Lastly, as Microsoft is a monopoly they are legally barred from engaging in any business activity that permits them to lock-in what is now known as the Wintel platform (anti-competitiveness). Microsoft?s monopoly position has created a dependence on Microsoft products. Colluding with Dell or any other PC OEM eliminates the choice of hardware that the Wintel platform has always offered, again because no one owns the platform. Such a move would obviously be an attempt to further control a market and platform that Microsoft does not and legally cannot own and therefore has no right to singularly or in collusion with others attempt to control.

Apple is controlling their products and nothing more. Apple does not have to contract the development of and operating system for their hardware because Apple develops the operating system for their hardware. The Macintosh platform is proprietary because every facet of that platform is owned by Apple. Apple is a hardware company that developed the Macintosh computer and Apple developed the Mac OS specifically for Macintosh. As Apple designs, develops and maintains every aspect of the Macintosh platform, they cannot enter into collusion (with themselves). Lastly, Apple is not a monopoly so they cannot act in violation of anti-trust laws by controlling their platform and products.

-----

P.S. Your avatar is horrid and freaks me out? I love it. ]:)

[orgopete]

Wondercow said:

>Orgopete, we've been through this in every other recent Psystar?
>This has been explained to you time and time again?
>It has likewise been explained in every thread?
> Is there something that you genuinely can't understand?

>

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You obviously want to play the victim and pretend that I'm making fun of you, calling you stupid, etc. I'm not going to indulge that any more than to say YOU are the one responsible for that, not me. I have never called names or said anything to make you feel "dumb"--that's all on you.

If it makes you feel good about yourself to pretend that others think you"re "stupid" then you really need to work on a lot more than your understanding of contract law.

Ah, I misinterpreted your meaning of the words "time and time again"? I thought you meant that it was stupid to bring up an argument again, but now I learn you didn't mean that at all?

No, no, that isn't it. I know what you mean. Just because I did something stupid does not mean you called me stupid by name, right?

You are arguing with the wrong person here. It is Psystar and the judge that apparently don't understand. I wish you would just write to them and clear this all up.

When I first heard of the case, I wondered what copyright abuse was. I searched on the internet and found several different descriptions. I posted some of their arguments. You and your cohorts have been free to explain how or why any of the arguments were improperly applied. The arguments and their rebuttals are there to see. Since you won the argument, put in the links so everyone that missed it will see too.

Frankly, I don't see any point to arguing this with you. You made your point that I need to work on a lot more than my understanding of contract law. I believe it is the contention of Psystar that Apple cannot enforce the tie that you are asserting they can. To say I don't understand is not really an argument. If that is all that you have, fine. I'll wait to hear what the judge has to say.

[mdawson]

The problem with that is that the boxed copies of OS X are not upgrades in the sense of the holdover definition of a software upgrade that precedes Internet-based update releases. Previously, when you purchased an upgrade disk for software it required that you had a pre-existing version of the software already installed that the upgrade would append; that is, the upgrade was not a standalone installation. In car parlance, this would be the equivalent of me upgrading my Scion by getting tinted windows, replacing the factory 15x6 wheels with 17x7 rims and replacing all the external lights with Xenon HID and LED bulbs; same car improved features.

Competitive software upgrades, were different in that they were full installs offered at a discount for people with a license for a competing product. When you purchase an off-the-shelf copy of OS X, it is the full operating system much like competitive upgrades were. Apple has to do this in order to make it possible for the user to perform a clean install of the new operating system. It is for this reason that you can also install your new version on a new hard drive without penalty if you decided to upgrade your boot drive in conjunction with your OS upgrade. Again in car terminology, this is akin to me upgrading my Scion by replacing it with a Lexus; same brand (Toyota) but a much improved, different vehicle.

[orgopete]

mdawson said:

The problem with that is that the boxed copies of OS X are not upgrades ?

? When you purchase an off-the-shelf copy of OS X, it is the full operating system?

Well stated. That is what I had tried to say in the past that it wasn't what was written on the box. It would come down to how it performed.

Also, as you pointed out, being a full install has its advantages as well. Apple could return to an upgrade status if they use a license code as Microsoft does.

Apple could put some of their copyrighted software in ROM, but that would likely kill BootCamp as well.

[smax013]

mdawson said:

Actually, that is not a similar case for several reasons. Mostly, the difference is that Microsoft and Apple are not comparable companies.

First, Microsoft was not contracted by Dell to develop an operating system exclusively for Dell hardware.

At this time, they are not. But, what if Micro$oft decided "we only want to deal with Dell" and thus entered into a contract to that effect for all future Windoze OSs and made a business decision that they would not longer offer retail sales of their OS.

>Second, what is now known as the Wintel platform is not proprietary; that is, PCs are made by countless OEMs and the (primary) operating system is licensed from Microsoft. No one owns the platform hence one or a few companies can legally lock it down (read: create a cartel, which is an anti-trust violation).

Neither are parts of the Mac platform. The Mac platform only becomes "proprietary" due to the Mac OS and the locking/locking method with the Mac OS. Most of the hardware used in a Mac is no more proprietary than similar hardware in a Windoze box. Apple does not make their own processors, graphics cards, RAM, LCD panels, batteries, optical drives, hard drives, etc. They do have some proprietary stuff, such as the MagSafe power adapter, maybe some proprietary chipsets, and maybe their motherboards.



>Third, Microsoft is a software company that does not, nor have they ever, manufactured and sold their own brand of PC. Therefore, short of the first instance I cited, Microsoft cannot legally tie their OS to a particular PC brand (e.g., Dell) although they can, for technical reasons, make Windows only operable on systems with a certain CPU base.

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They can potentially tie their OS to one brand of PeeCee. There might be some reasons due to where they are now that might prevent (i.e. the monoply thing). If we temporarily ignore the monoply bit for the moment, then they could certainly make a business decision that they only want to sell their OEM licenses to one company and not sell retail licenses anymore. Now, I don't know for sure if this is legal or not overall, but then I don't know if Apple tying their OS to their hardware is really legal or not...I suspect it is and I suspect that Micro$oft could do the same with a second company (barring the fact that Micro$oft has been deemed a monoply).

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Lastly, as Microsoft is a monopoly they are legally barred from engaging in any business activity that permits them to lock-in what is now known as the Wintel platform (anti-competitiveness). Microsoft?s monopoly position has created a dependence on Microsoft products. Colluding with Dell or any other PC OEM eliminates the choice of hardware that the Wintel platform has always offered, again because no one owns the platform. Such a move would obviously be an attempt to further control a market and platform that Microsoft does not and legally cannot own and therefore has no right to singularly or in collusion with others attempt to control.

This is the one where I have a lot less to disagree with. The fact that Micro$oft has been found to be an OS monoply would certainly be a major potential sticking point to my "parallel" case. I don't believe the other reason you cite would be too hard to overcome, but this one would be. If Micro$oft were a brand new company with no market share, I suspect that they could easily enter into a business arrangement (whether with an explicit contract or not) to supply an OS to the likes of Dell. But, as an established company with 90%+ of the OS market share and being deemed a monoply, they likely would not be able to make the business model switch.

But, there is a chance. If they entered into a contract and changed their business model to sell only OEM licenses to their contract partner, there is a slight chance that it might be permitted...a VERY slight/remote chance. But, you are likely correct that it would be deemed an attempt at collusion to gain a market monoply of computers for their contract partner and maintain their OS monoply.

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The Macintosh platform is proprietary because every facet of that platform is owned by Apple.

and

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As Apple designs, develops and maintains every aspect of the Macintosh platform, they cannot enter into collusion (with themselves).

Not quite completely true. They don't design various key components and they don't own every facet of the platform. They do own the overall design of the platform (i.e. the completed product), but that is different than owning "every facet" and designing "every aspect".

>Lastly, Apple is not a monopoly so they cannot act in violation of anti-trust laws by controlling their platform and products.
>

It is certainly true that they have not be "officially" rules a monoply (at least in the US...some other locations have come closer when talking iPod/iPhone/iTunes Music Store tie-ins). But, they are flirting with it in the realm of iPods and iTunes Store. And do to a degree have some "monopolistic" type stuff/behavior in the computer side as well, even though they are likely far from the legal definition of a monoply. While doubt they will get in trouble any time soon on the computer side for monopolistic type behaviour, some of it is kind of stupid on their part from a customer relation point of view. But, in the end, I don't really include their tie of the OS and hardware as part of that...I suspect they are on good legal ground and the customers that they piss off by that policy are likely a small minority that will not harm their sales too much.

-----

P.S. Your avatar is horrid and freaks me out? I love it. ]:)

It is obvious not working as it should...the "crazy eyes" are supposed to make you fear me enough to not EVER dispute what I say! ;) :D

[trip1ex]

I think what Apple can claim is Psystar is infringing on their brand name and reputation. Apple built its business on the integrated software/hardware and allowing another company to take their products and resell them in their own manner would undermine the goodwill that Apple has built up amongst consumers. OR something like that.

I mean is a porn studio allowed to buy bags of Fritos by the truckload and package 1 Fritos bag with each their porn movies and resell it as Porn and Corn? And use the Fritos name in their ads?

Maybe that's legal. I don't know. But I would think you have some control over how your product is resold.

[Wondercow]

[quote name='orgopete']
>

Wondercow said:

> You obviously want to play the victim and pretend that I'm making fun of you, calling you stupid, etc. I'm not going to indulge that any more than to say YOU are the one responsible for that, not me. I have never called names or said anything to make you feel "dumb"--that's all on you.
>
> If it makes you feel good about yourself to pretend that others think you"re "stupid" then you really need to work on a lot more than your understanding of contract law.
Ah, I misinterpreted your meaning of the words "time and time again"? I thought you meant that it was stupid to bring up an argument again, but now I learn you didn't mean that at all?

No, no, that isn't it. I know what you mean. Just because I did something stupid does not mean you called me stupid by name, right?

What you have grossly misinterpreted is that I have called, or even thought, you "stupid". As I said, that is on you; you're assuming that I think you're stupid because I pointed out that you've asked this question, or made this point, before and it has been answered and addressed. It says a lot about you that you automatically assume others think you're stupid.

Had I intended to imply stupidity I would have done just that--I most certainly wouldn't have tried to help you.

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You are arguing with the wrong person here. It is Psystar and the judge that apparently don't understand. I wish you would just write to them and clear this all up.

I'm arguing with the correct person--it was you who impugned me. Before you stated that I was calling you names I had no argument with anyone.

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When I first heard of the case, I wondered what copyright abuse was. I searched on the internet and found several different descriptions. I posted some of their arguments. You and your cohorts have been free to explain how or why any of the arguments were improperly applied. The arguments and their rebuttals are there to see. Since you won the argument, put in the links so everyone that missed it will see too.

What are you talking about?! What argument did I win? What on Earth do you mean?!

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Frankly, I don't see any point to arguing this with you.

I have no idea what you think we're arguing. What I am arguing is, as stated above, your impugnment of me; what I am arguing is that I, in no way, stated nor implied that you're "dumb or stupid".
>You made your point that I need to work on a lot more than my understanding of contract law. I believe it is the contention of Psystar that Apple cannot enforce the tie that you are asserting they can. To say I don't understand is not really an argument. If that is all that you have, fine. I'll wait to hear what the judge has to say.
Judge Alsup already ruled that Apple has a right to tie the MacOS to Mac hardware. This decision was reached when he threw out Psystar's antitrust claim.

I didn't say that you don't understand nor did I make that a portion of my "argument". I asked you to tell us what you don't understand so that we might clarify for you: is there something that you genuinely can't understand? Perhaps if you can articulate the point on which your stuck we can clear it up for you. I was offering the collective assistance of the forum members to help you. Apparently offering to help you is the wrong thing to do; not to worry, though, it won't happen again.

[smax013]

mdawson said:

>When you purchase an off-the-shelf copy of OS X, it is the full operating system much like competitive upgrades were. Apple has to do this in order to make it possible for the user to perform a clean install of the new operating system. It is for this reason that you can also install your new version on a new hard drive without penalty if you decided to upgrade your boot drive in conjunction with your OS upgrade.

FWIW, you can do clean installs with Windoze "upgrade" licenses...it is more work that with the Mac OS, but it can be done.

The real technical difference between a retail OS license and an upgrade OS license is price and terms of the EULA. While a previous version of the OS need not be there for the full OS install (i.e. a "clean install"), the terms of the EULA for an upgrade license still require you to have a legal version of a previous OS in your possesion that is for THAT computer (i.e. it is not installed on a different computer now that you are installing a new version). And because you are "agreeing" to this "restriction", the OS company is selling it to you at a reduced price. In contract law terms, this means that you have both passed "consideration" to each other (which is a requirement for the contract to be binding/legal).

[smax013]

Wondercow said:

Judge Alsup already ruled that Apple has a right to tie the MacOS to Mac hardware. This decision was reached when he threw out Psystar's antitrust claim.

While I certainly have not read the ruling or even if I did, I am no legal scholar, but I highly doubt that throwing out the anti-trust claim puts to bed the issue of whether or not Apple can legally tie the Mac OS to the Mac hardware. I would believe that there are potentially other legal reason beyond anti-trust claims why Apple might not be permitted to tie their OS and hardware.

[tech_head]

Hi,

The analogy is this.
Company A dumps OEM copies of Dell versions of Windows XP because they didn't need them.
Company B is a system builder and buys those copies and modifies the files needed for them to be recognized on a Dell machine. They then sell the machines.

The EULA on the package says for sale with a new Dell machine only. Has Company B violated the EULA?
Should they be stopped from selling those machines? Yes and yes.

Psystar is in violation.

[smax013]

tech_head said:

Hi,

The analogy is this.
Company A dumps OEM copies of Dell versions of Windows XP because they didn't need them.
Company B is a system builder and buys those copies and modifies the files needed for them to be recognized on a Dell machine. They then sell the machines.

The EULA on the package says for sale with a new Dell machine only. Has Company B violated the EULA?

Not necessarily. If it is the pure OEM install disk, then I don't believe Dell can put in their own EULA instead of Micro$oft's. And to my knowledge, there is no provision in the OEM license from Micro$oft that prevents you from MOVING that license to another computer. Now, if you do so, then you shoud realize that you are on your own for support as the Micro$oft OEM license requires the BUILDER to support the OS, which would be the likely main reason why Dell would put such a label on it...if you move the license, then they are no longer obligated to support it. Now, it is possible that OEM licenses to major computer manufacturers are different than "system builder" OEM licenses that you get through the likes of NewEgg and such.

Now, some manufacturer's slipstream the OEM install disk with "stuff" to make it such that you can physically ONLY install it on their computer (i.e. it detects something in the BIOS or motherboard to determine that it is say an HP model XB234 computer and is appropriate for installation to proceed...note the model number is a fictious one to protect the guilty ;) ). In such situations, it is more likely that the manufacturer could put on their own EULA and not be "outta bounds".

Now, there might be more of an arguement that Company A was in the wrong. After all, if there WAS any sort of a contractual obligation, it would have been between Company A and Dell, NOT Company B. In the case of the Mac OS, Pystar is buying the rights to use the software (per the EULA) from Apple. It would largely depend on what legal principle that "for sale with a new Dell machine only" comes from...if part of the EULA, then it would apply to anyone...but if part of the contractual obligation from the purchase of the computer from Dell (i.e. NOT the EULA), then it would only apply to the original purchasers potentially.

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Should they be stopped from selling those machines? Yes and yes.

Depends.

[Wondercow]

[quote name='smax013']
>

Wondercow said:

> Judge Alsup already ruled that Apple has a right to tie the MacOS to Mac hardware. This decision was reached when he threw out Psystar's antitrust claim.

While I certainly have not read the ruling or even if I did, I am no legal scholar, but I highly doubt that throwing out the anti-trust claim puts to bed the issue of whether or not Apple can legally tie the Mac OS to the Mac hardware. I would believe that there are potentially other legal reason beyond anti-trust claims why Apple might not be permitted to tie their OS and hardware.

Without getting too technical tying (or "tying arrangement") is, by definition, an antitrust violation, illegal under both the Sherman Antitrust Act and the Clayton Act. Judge Alsup ruled the Apple violates neither Act.

You do touch on what the current counterclaim is about (in a nutshell)--Apple's overreaching copyright claims. However, even if Psystar were to win on that claim it doesn't mean that Apple can't tie the OS to the hardware (they can, see above), it just means that they can't do it that way.