[Allen1]

Just to mention because it was asked:

Axiotron is actually authorized by Apple, officially, to do what they do (modify Mac hardware into new products).

Psystar, of course, are not.

A Modbook is a Mac, bought and paid for along with the OS license. Apple gets everything out of that purchase that they would otherwise. Psystar are bypassing Apple's hardware sales in favor of their own, which is exactly what Apple doesn't want to happen, because that's where they make their money.

If Psystar were simply re-selling the OS X box that they bought from Apple, I don't think there would be an issue (the physical medium is the thing that is purchased, the software itself is licensed - they are two different things, the DVDs and the data on them). It's the installation of that software onto their own machines that violates the license (and arguably constitutes the making of an illegal copy onto that hard drive).

[orgopete]

Allen1 said:

>Psystar are bypassing Apple's hardware sales in favor of their own, which is exactly what Apple doesn't want to happen, because that's where they make their money.

Quote

I don't think it can be said any better than this. Will the court say, if you buy Apple software, you must buy Apple hardware. Does a consumer have any rights?

[Wondercow]

orgopete said:

Through all of this, I still find it hard to foresee the final answer. On my skiing lift ticket it says that it contains a contract between myself and the resort. It further states that by skiing at the resort, I am accepting the risks and agree not to sue the resort for any negligence, not mine or the resorts. And, if I decide to sue the resort, I agree that I will only sue them in the court of common pleas in the county or the local US district court.

I am standing in the middle of a trail, in plain sight, and the only skier on the trail. A snowmobile operated by the resort comes up the trail, hits me, and breaks my leg. Can I sue them? Does the contract hold? It says I have agreed to not hold them liable.

It is a free country, I can sue them. Will I win? Will the court uphold the contract? Can a resort be held liable for its negligence?

The resort, as a rule, cannot indemnify themselves against gross negligence. In the scenario you present you probably could sue and win since getting hit by a snowmobile by an employee while the course is clear but for one person is just a wee bit beyond simple negligence.

To put this in a little perspective: many stores have signs posted that they are not responsible for lost, stolen, or damaged items. But if an employee took your bag, threw it on the floor, and stomped on it I'm sure you'd agree that the store would be held responsible, their sign notwithstanding.

[orgopete]

Wondercow said:

To put this in a little perspective: many stores have signs posted that they are not responsible for lost, stolen, or damaged items. But if an employee took your bag, threw it on the floor, and stomped on it I'm sure you'd agree that the store would be held responsible, their sign notwithstanding.

You are going to confuse me. I thought you were arguing that Apple could stipulate anything they wished in their license. If the issue of validity of Apple's license is at issue, then I still cannot predict the outcome.

[Chicago Dan]

It's a myth that upholding Apple's copyrights and contractual rights to license its own software is somehow pro big business. Important copyrighted material in all industries is created and controlled by individuals and small businesses too. Large companies purchase or license rights from individuals and small companies all the time.

What's important here is that Apple is protecting its turf. Every time someone uses Mac OS X, or sees it in operation, (s)he forms some opinion about the quality of Apple's creation. Apple clearly has written its software to operate on its hardware, and Apple legitimately should be concerned that the quality of the OS X experience will suffer if it is run on other hardware. Windows sometimes doesn't behave right depending on hardware configuration, which supports this concern. Also, Psystars own web page (http://store.psystar.com/faqs/) further bolsters this concern, "Psystar does not guarantee that each and every program and feature will operate correctly as the Open Computer and/or OpenPro is not supported by Apple Computers." Thus, Apple's licensing strategy makes sense.

This situation isn't at all like nonsensical hypothetical restrictions on the use of books or wrenches discussed elsewhere here. It's more like a situation where one kid (Apple) might invite other kids to play in Apple's sandbox so long as the other kids agree not to pee in it. Or, I might agree to lease (license) my apartment to someone so long as they agree not to smoke in it.

Also, there's nothing wrong with any business - large or small - protecting its intellectual property. There would far less incentive for someone to write brilliant software without the ability to capitalize on it and control the way it operates.

[orgopete]

orgopete said:

I expect this is be complicated. ? It seems more like other software. Adobe limits the number of computers you can run their software on. It has reasonable rights to the license and its transfer.

Obviously, I am not a lawyer. I am choosing to correct the above. As I understand it, the court ruled in Vernor v AutoDesk that Vernor, the purchaser of AutoDesk software has the right to resell it under first sale. Simply search for Vernor v AutoDesk. The court overruled that the AutoDesk license limited access to the software to only the original purchaser. It asserted that first sale copyright principle should be upheld in this instance. It would seem that Adobe by allowing transfer may simply be registering its licensees.

Earlier in this thread, Wondercow has made a much better description of a first sale issue than I could.

[Chicago Dan]

Quote

{quote:title=It has been argued:}{quote}

>
>> Will the court say, if you buy Apple software, you must buy Apple hardware. Does a consumer have any rights?

Yes. A consumer does have plenty of rights.

As a consumer, you have a right to do as you please with what you buy so long as it doesn't violate some law, which can be a criminal law, a civil law or regulation, a tort, a contract (i.e., private law), etc. So, when you buy a computer, you can lawfully install any software on it that you have the right to instal on it.

Your rights to run software can and usually are very limited. For example, you may have a license that expires after a period of time, after which the software no longer runs. You may have a single-user license that prevents installation or loading of software on more than one machine (MS Office, for example). In Apple's case, your rights to install Mac OS X are limited to installing it only on Apple-branded computers.

It is clear that Apple is motivated to do this to drive sales of its hardware, but that's Apple's right. Apple very likely also wants to make sure that the quality of the OS X experience is within Apple's control, so that if it doesn't run properly on non-supported hardware, people won't blame Apple or come to think that OS X sucks.

[Cog3125]

dean_o said:

I'm not sure a license agreement is the same as law. Apple may sell it's OS with a EULA, and they can try to make it stick. However, if the EULA itself isn't legal, is it enforceable? I'm no expert, but I find it hard to believe that an illegal contract is binding. That appears to be Psystar's argument. They're saying that the EULA itself is in violation of copyright law.

No, an EULA is not a law, it's a contract. Not to be pedantic about it, but the terms are interconnected, but not interchangable. And unless there genuinely can be shown to be something illegal about a contract, it is binding. Of course, it's true that if a contract was for something illegal it can't be enforced by law. You can put anything you like on a piece of paper but the only way the court will enforce it is if it was for a legal agreement freely entered into.

So, yes, you are correct: that is exactly what Psystar has been arguing from the beginning. Not that the EULA violates copyright laws (that would really be absurd though I wouldn't put it past Psystar in their desperation at this point) but that it is monopolistic practices (which can also be illegal).

Unfortunately the courts have already previously slapped down that argument as internally self contradictory and allowed Psytar to refile with a reworded complaint that (in my opinion, I realize) really didn't sound like it had been changed in any meaningful way: just other words that amounted to the same shaky argument. Apparently, though, they have nothing else going for them, and are determined to just drag things out like a gambler with a bad habit.

My own opinion, for what it's worth, is that allowing a precedent where a third party gets away with idly dismissing the EULA on software would be a disastrous blow for ALL commercial software... the big guys AND the little guys. It would undermine a copyright holder's control over their assets, effectively corroding away at the whole point of the copyrights and trademarks which hurts far more than Apple.

That's why I still say: Psystar, face it already : it just ain't gonna happen for you.

[orgopete]

Chicago Dan said:

As a consumer, you have a right to do as you please with what you buy so long as it doesn't violate some other law, which can be a criminal law, a civil law or regulation, a tort, a contract, etc. So, when you buy a computer, you can lawfully install any software on it that you have the right to instal on it.

Your rights to run software can and usually are very limited. For example, you may have a license that expires after a period of time, after which the software no longer runs. You may have a single-user license that prevents installation or loading of software on more than one machine (MS Office, for example). In Apple's case, your rights to install Mac OS X are limited to installing it only on Apple-branded computers.

See post number 32 by Wondercow. At issue is whether Apple's has the right to limit Psystar on how they may use software they have purchased from Apple? In first sale issue, also noted in #15 by Wondercow, the purchaser can resell software without respecting the software license of the creator. That was determined by Vernor v AutoDesk (AutoDesk limits resale of its license. The court disagreed.)

I am not disagreeing that Psystar had violated the license agreement Apple has made on its software. I also do not expect that Apple has any obligation to play nice with unlicensed hardware. What I don't know is whether Apple has the legal right to enforce its license agreement.

Let's anticipate that Apple is correct in this issue, it is a slam dunk. Apple is being financially harmed by Psystar and that Psystar has violated the license agreement. Should the court not immediately issue a cease and desist order on the prima facia evidence?

Let's look at another possibility, as suggested by the Vernor v AutoDesk decision. Apple may sell its software (license), but as with all other software, it becomes the property of the owner as first sale seems to indicate. In that case, I for one, cannot see how Apple could dictate to Psystar how it must use it. That is, the ownership of the software becomes the property of Psystar (remember, I am not a lawyer). In that case, I would be surprised that a judge would block sales by Psystar. Apple certainly has the right to have its day in court and are dutifully proceeding with that right.

Disclaimer, I am a very long time Mac user. I much prefer a Mac to Windows. What I don't know is whether Apple has a right to dictate to a user what or how they may use software they purchase. My feeling is that I would be a little surprised if Apple's right to dictate to the consumer is upheld, but not shocked.

PS, this has been very good and interesting discussion.
Message was edited by: orgopete

[alinuru]

I don't see what the fuss is.
Why wouldn't apple want to sell more copies of its OS to others? How many businesses would limit LEGAL and PAID sales of its software?
It already includes the latest versions of its OS FREE, to all NEW customers of its computers.
It has an UPGRADE price for those upgrading.
It can charge a HIGHER price (as high as it thinks its appropriate), to NEW purchasers. Nobody can stop Apple from charging as high a price as it wishes to.
Unless Apple is afraid that someone "out there" will manufacture better hardware for a lower price. I doubt that is possible.
On the other hand, there is a good chance that other manufacturers will introduce new customers to the Mac Community who will soon realize that the original equipment is superior.
So once again, why the fuss?

[Chicago Dan]

alinuru said:

>> So once again, why the fuss?

If Apple were concerned simply with the profit it realizes from licensing of software, there would be no fuss. However, Apple is apparently concerned about two things:

(a) Profits it realizes from the sales of its hardware. Apple would rather have the profits from the sale of its software and the profits from the sale of its hardware over profits from only the licensing of its software.

(b) Control over the OS X user experience. The experience of Windows running funny on some machines, and the statements on Psystar's own web page warning that not all features of OS X might work on Psystar's machines show this to be a real concern. So, Apple would want to keep its reputation for quality, and should seek to avoid a situation where people using or experiencing OS X on a non-Apple machine might have problems and blame Apple for them.

[beeble42]

Apple also have to think about cost of support. They can sell OS X for such a low price because they support a narrow range or configurations which have been thoroughly tested. If things were open slather, Apple could say they don't support non-Apple hardware, but then people would start suing saying Apple has sold it to them for use on non-Apple hardware and therefore Apple should support the product for that kind of use. And even if it didn't come to that, Apple's costs of handling calls from angry customers wanting support on unsupported hardware would push the price of OS X up.

How many calls do you think Apple currently gets about unsupported configurations like Time Machine to an AEBS or other NAS? All these calls cost Apple money even if they don't attempt troubleshooting. Do you really want to pay more for your Mac or OS in order to field these kinds of calls, or worse, pay for much higher costs of support people on generic hardware?

I kind of like the fact that I get premium features for less money than the cheapest version of Windows. And this is the number one reason why.

[xStep]

bigh said:

xStep, I believe the process of installing a retail copy of OS X still requires a bootloader that keeps the "don't steal Mac OS" extension from loading. Even though it's indirect, I believe this would be seen legally as modifying the OS and breaking a copyright measure, which is illegal under the Millenium Copyright Act..

That may be true, but if you have bought the software, you have by definition not stolen it.



Second, if you were to take the public source code, where that message is likely lacking, compile and install it, I'd have to wonder if Apple could use the DMCA against you. You would not be circumventing the access control to the OS, but simply not displaying an annoying message. Of course, perhaps the message is considered part of the access control because it informs the person booting the machine of a possible violation of use. This can sure get ugly fast.

[orgopete]

beeble42 said:

Apple also have to think about cost of support? Apple's costs of handling calls from angry customers wanting support on unsupported hardware would push the price of OS X up.

Chicago Dan said:

(b) ? Control over the OS X user experience So, Apple would want to keep its reputation for quality, and should seek to avoid a situation where people using or experiencing OS X on a non-Apple machine might have problems and blame Apple for them.

These are all good points. I am less concerned about the support issue. The last time I called Apple, the first thing they asked me was my computer serial number. A lack of a serial number would seem to limit the support for OS X. Since I am taking the Apple lawsuit as evidence that Apple is discouraging these sales, I don't know how a purchaser of OS X for use on a generic PC would get the idea that Apple was going to answer their support questions. I can think that if Psystar wished to continue to sell computers, they might pick up the slack here.

To me, there is a difference between buying that Ford alternator to put on your Lexus (because it was cheaper) and expecting Lexus to install it if it didn't fit right or failed to work altogether. My expectations is that this installation is as a buyer beware issue. If a Ford alternator did fit a Lexus does not mean that Lexus is condoning the practice. On the corollary, if the Lexus alternator fit a Ford I don't see how Lexus could enforce an agreement that specified that Lexus alternators could only be used on a Lexus automobile. Maybe these Lexus alternators are so superior that every make of car manufactured would like to use a Lexus alternator (and every mom and pop wind farms installs a Lexus alternator). If that were true, then it could be argued that every sale of an alternator deprives Lexus of an automobile sale.

I am not arguing the financial implications. I am sure everyone is correct to some extent or another.

[quote name='orgopete']
>

Wondercow said:

> To put this in a little perspective: many stores have signs posted that they are not responsible for lost, stolen, or damaged items. But if an employee took your bag, threw it on the floor, and stomped on it I'm sure you'd agree that the store would be held responsible, their sign notwithstanding.

? Apple could stipulate anything they wished in their license. If the issue is the validity of Apple's license, then I still cannot predict the outcome.

My question is one of law. If you buy Apple's OS X, do you have to put it on an Apple computer? (AutoDesk stipulated that its license could not be re-sold and the court disagreed.)