[EPonj]

"THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION."

"SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU."

This sentence can be read in about every EULA or other international contract. Which means EULA is not LAW. So most EULAs (including Apple's) are partly illegal in some parts of the world (even in certain US states).

This is why you'll always find the following sentence too:

"If for any reason a court of competent jurisdiction finds any provision, or portion
thereof, to be unenforceable, the remainder of this License shall continue in full force and effect"

This could also be found illegal in some regions, and some juridictions could invalidate the whole EULA for this, depending on the importance of the 'faulty' clause.

I'm not saying it's going to happen. The case will be set through interpretations of the EULA and the law with beautyfull words an who has the best lawyers. Well it's Justice, you know how it works.

Now, should Apple license it's OS to other manufacturers? I think this would be Apple's end. As most people say, Apple is mainly a hardware company and it's income is made on hardware. I don't believe in Apple's hardware being superior than a well custom-built PC. I think Apple would loose big bucks as most people would turn to other manufacturers. Plus, if OSx was to be compatible with every piece of hardware out there, it would be just like another windows concerning speed and stability, if not worse. It would not be good advertising for Apple.

Finally, I think anyone pretending to be able to predict the outcome of this trial is just fooling himself. Same for people assuming MS stands behind all this. Fact is MS community is not agressive toward Apple. I don't see any point for MS to do something like this

[DPG4450Guy]

No, the contract is not "partly illegal."

Read what the EULA says.

In some countries, the consumer BY LAW has certain extra rights. But don't fool yourself to the main point - the condition of the agreement stating you can only install on Apple hardware is binding EVERYWHERE. If any country with some whack-job gov't tried to skirt around international copyright, the first move by Apple and just about every other major company would be to treat that country as a pariah - i.e., their products cannot be legally sold there.

This case is already decided - Prystar is going to lose, and lose big.

The minute 'courts' start deciding companies cannot innovate and profit by their innovations under the copyright laws is the minute financial catastrophe starts - and the governments of the world won't let that happen.



I've noticed several forum commentators seem to have registered at the same time these stories were posted, and started siding with Prystar.

Of course, that's just a coincidence. ;)

[alinuru]

I cannot see why the free market cannot be allowed to decide this.

Either a computer system works and succeeds in the market place or it doesn't and fails in the marketplace. If someone puts out a computer that claims to run the Mac OS satisfactorily but fails to do so, it will not survive for long. It will receive bad reviews and go out of business in no time.

Profits are profits. Whether they come from hardware or software, is irrelevant. As a stockholder, I don't make a distinction and neither should Apple.

There is nothing that restricts Apple from charging as high a price to new licensees of its OS, as it deems sufficient to maximize its profit. If the price level is more than the licensees can handle, they will go away, and so will the "problem". In any case it will not lose anything.

What I AM sure of is that I love my MAC and have loved them since the first ones ever came out through thick and thin and I sure am not going to trust my work to a non-standard machine. And most of us who love MACS for what they do for us are like that. So Apple should chill out on this. We're still all going to be here.

[orgopete]

DPG4450Guy said:

This case is already decided - Prystar is going to lose, and lose big.

Quote

The minute 'courts' start deciding companies cannot innovate and profit by their innovations under the copyright laws is the minute financial catastrophe starts - and the governments of the world won't let that happen.

Quote

I've noticed several forum commentators seem to have registered at the same time these stories were posted, and started siding with Prystar.

I suppose I would seem to be one of those siding with Psystar. If you construe it that way, it is not my intention. I think this is one of the most fascinating cases being discussed and as all of us Mac users, is of great interest.

I have been doing some research on the background. I don't know this, so this is simply conjecture. Psystar started selling their computers one month after the ruling of Vernor v AutoDesk. (Vernor bought used AutoDesk software and resold it on eBay. The court determined that since Vernor bought the software used, he was not bound by the AutoDesk license agreement.) I am not a lawyer, but my reading of events is that case may have indicated to Psystar their chance to sell OS X computers.

If you want more (as in too much) information, I suggest you consider the following links, Paltry and Paltry 2.

Paltry notes some conflicting cases, Softman v Adobe in which Adobe's EULA did not apply to Softman as the license was only visible upon loading the software. Softman had not used the software and therefore had not agreed to the license terms. (He had separated an Adobe Collection and sold the pieces individually.) In One-Stop v Adobe, Adobe's claims were upheld. One-Stop had purchased academic versions, removed the academic notation from the software, and resold it as the regular version at a higher price. Though muddied, these seem to deny Adobe's license in one instance and uphold it in the other. Paltry also notes the court did not uphold Lexmark's contention that only Lexmark ink cartridges can be used in their printers.

An interesting quote from a poster is, "When you sell something, it's sold and none of your business anymore." I am not arguing this as a legal opinion, but this is my opinion about anything I buy. For those people that buy something just to take it apart or break it, it seems stupid, but not illegal. For me, the issues are too complex to predict what the court will say, but I am very interested!

Even so, one can hypothesize the issues in this case. On the one hand, will Apple be able to demonstrate to the court that its sale of OS X is a license and not a sale? If it is a sale, it would seem doubtful they could specify the terms of use of the software. (An Apple EULA, "The purchaser of iWorks cannot use the software to manage their illegal drug sales.") If it is a license, Apple will have to demonstrate to the court how they maintain the license structure (this question is beyond me). If Lexmark cannot specify that only Lexmark cartridges be used in their printers, does that mean the reverse is also true? If you are free to buy any other cartridge, then if you buy a Lexmark cartridge, are you free to buy any printer?

[Allen1]

Wow, what a thread :)

As an artist I've had to come to at least a cursory grasp of the forces involved with copyright, so here's a couple of pennies' worth as I understand it:

A book is a piece of hardware (a storage medium) upon which is delivered a piece of intellectual property (a written work, stored as ink). You buy the book. You can do whatever you want with the book - you own it outright. You may rip it apart, unglue it, tear pages out, burn it, read it, whatever. You can even sell the book. The doctrine of first-sale applies to the book.

What you may not do, legally, is make duplicates of the contents of that book. You may not Xerox it, you may not scan it, you may not make new plates and print your own book copies, etc. The work itself is protected by copyright (which is, quite literally, the right to copy a work - distribution or intent or profit really don't enter into it (except in fair-use exceptions which getting into here would make this much more than two cents' worth)) no matter what happens to the medium (the physical book).

No one who grasps the basic premise of copyright would argue that they had a right to the story within the book (beyond reading it) - when you buy the book you buy the book, not the rights to the story therein. In essence, you have been granted a license to read it and that's about it.

When I make a painting, you can buy that painting and you own the canvas and the oil paint (or whatever), but not rights to copy that painting, unless I assign them to you explicitly (which, frankly, costs a lot more). The owner of an artwork may not make posters of it and sell them, for example, unless the copyright holder (the artist) says it's okay. If I, as the artist, make posters of it, the buyer of one of those posters is not granted the right to make more.

A CD or DVD is a piece of hardware upon which is delivered a piece of intellectual property (a computer software application). You buy the disk. You can re-sell that disk. But, again, the work itself, the software, is subject to copyright restrictions and those are defined solely by the owner of that copyright. They grant you rights to access and interact with that work at their discretion (again, subject to fair use - I believe, for example, you are allowed to make a single back-up copy for your own archives).

The only real difference between duplicating an oil painting or story from a book, and software is that software is the only one of these which can be duplicated perfectly and completely and very cheaply by anyone with very common equipment. But being easier to copy doesn't get around the fact that it's still a violation of copyright if you don't have permission to do it.

Psystar is buying the OS DVDs from Apple and then making a copy of that OS (onto the hard drive of non-Apple hardware) in direct contravention of the rights Apple is granting the purchaser. Essentially, they seem to be arguing that buying the book gives them the right to make copies of the story and sell them.

[alinuru]

Are you saying that anyone who buys an upgrade and loads it onto their computer is break the law?

[orgopete]

Allen1 said:

? You buy the book. You can do whatever you want with the book ? You can even sell the book. ? What you may not do, legally, is make duplicates of the contents of that book.

I disagree with this point. You can take your book to Kinkos and photocopy to your hearts delight. You just can't SELL the photocopies.

Quote

When I make a painting, you can buy (it) ? but not rights to copy (it) The owner of an artwork may not make posters of it and sell them ?

Again, I believe sell is the operative prohibition. The owner can take a photo of the painting and make himself a snapshot to show his friends or a poster if he wishes. He just cannot sell any copies he makes because he does not own the intellectual property contained in the painting.

Quote

A CD or DVD is ? a piece of intellectual property? . You buy the disk. You can re-sell that disk. (you are allowed to make a single back-up copy) subject to fair use ?.

Sort of, Time Machine does not break copyright law.

Quote

The only real difference between duplicating an oil painting or story from a book, and software is that software is the only one of these which can be duplicated perfectly and completely and very cheaply by anyone with very common equipment. But being easier to copy doesn't get around the fact that it's still a violation of copyright if you don't have permission to do it.

Psystar is buying the OS DVDs from Apple and then making a copy of that OS (onto the hard drive of non-Apple hardware) in direct contravention of the rights Apple is granting the purchaser. Essentially, they seem to be arguing that buying the book gives them the right to make copies of the story and sell them.

I argue that the duplication is not illegal and the ease and perfection are not really issues either. Even if you took a crudely written book, song, software, or an artistic sketch, you could embellish as much as you liked. You can do all of this simply in your head. After having done so, it is the intellectual property rights that are protected. You may not sell any derivative of the original work.

As I understand the intent of the intellectual property rights law, it protects the creator from someone else to profit from his effort. Its intent is to keep someone from altering a story, song, painting, etc., just enough to disguise the theft.

So, while Psystar allegedly did make copies of the software, did they do so to defraud Apple Computer? If Psystar includes the original disk with each and every computer on which it resides, have they violated the copyright laws? I am not so certain this is illegal.

[Allen1]

alinuru said:

Are you saying that anyone who buys an upgrade and loads it onto their computer is break the law?

No, because the copyright owner assigns you the right to do that when you agree to the EULA and click "Accept."

[Allen1]

@ orgopete:

If the copyright holder prohibits you from copying at Kinko's you may not legally make those copies.

Making copies or reproductions of a work, and authorizing others to reproduce, is a right which attaches solely and exclusively to the original author or copyright owner. Reference.

Strictly speaking, selling or not selling is immaterial, distribution is likewise not really the issue. These things mostly only become an issue when someone wants to sue, which is typically only done in cases where it's practical.

Offhand, I believe your "painting in a snapshot" example would fall under the Fair Use doctrine. There are a lot of things that potentially fall under this category (printing out recipes you find on the internet, probably, that sort of thing. You MIGHT even argue that you're allowed to make a backup copy of your books in case the original gets destroyed, I'm not sure if that's been tested in court or even come up. Fair Use is not terribly explicitly defined so it's a bit of a moving target, but many of the "common sense" uses probably fall under it.

Time Machine, and backing up software in general, is, also, as I understand it, included in Fair Use.

Reading something or looking at a piece of art and forming a mental picture of it is not considered making a reproduction, as far as copyright law is concerned. Memory, experience and imagination are not considered derivative works. Making copies of software onto physical media is.

I think that Apple's arguing that, as the copyright holder of the OS, they expressly do not grant the right to copy that software onto a non-Apple device. That they do grant that right to anyone who legally obtains a copy of the OS and installs it onto a Apple hardware.

As you say, the purpose of copyright is to protect the author of a work from theft so that that author can profit from his creativity and produce more works. To protect the income of the copyright holder and the integrity of the work. Isn't this exactly what Apple's using it for, to protect their income and the Mac OS experience?

[chuckbo]

Orgopete,

no if you take a book of Disney cartoons to Kinko's and try to make a copy, even for yourself, they won't let you do it. It violates Disney's copyright. Same thing if you go to a photographer and they sell prints to you. Kinko's will not make copies of those photographs because it would violate copyright law.

[orgopete]

Allen1 said:

Wow, what a thread :)

Yes indeed. I think there are many of us in cyberland that recognize this court case his HUGE! If Apple should win or lose are interesting. What effect will either have? This places technology issues in the forefront. If Apple were a hardware company and the software were simply to enable hardware sales, then Apple could install their OS in ROM on the motherboard. Boy would that make OS upgrades costly (and kill sales).

The Vernor v AutoDesk decision really impacts Apple. If Vernor can sell AutoDesk programs without the license agreement applying to the purchaser, how can Apple control its license (without killing its business)? As the Mac OS has gotten very very good, it attracts hackers to discover methods to make it work on other hardware. The more generic Apple hardware has become with the advantage to costs and changes this provides, it will probably enables hacked versions to run on competing hardware.

If Apple just had a large motherboard ROM, this will make it difficult for hackers, but also limit potential upgrade paths, especially to new technology. (I hope it is clear that I don't know what I am talking about here.) Then Apple could continue to be a hardware manufacturer and ensure compatibility with its OS. However, if the distinction between Apple's hardware and its competitors is small or nonexistent, Apple will have become a hardware and software manufacturer.

If Apple's hardware profits disappear, then all of the predictions about Apple, their business, pricing structure, etc., will likely come true. It is understandable that Apple should bring a suit against Psystar, but I wonder if it is a day late and a dollar short. Me thinks they should have bought the AutoDesk software before Vernor and effectively negated that court decision.

I am not making that a prediction. They created an iPhone and an iPod. They have wonderful software. I just order the iLife, iWorks, Leopard family pack. It think it would be premature to predict their doom if they lose this court case. I remember slide rules and manual typewriters. I will continue to anticipate what tomorrow will be like.

[orgopete]

chuckbo said:

Orgopete,

no if you take a book of Disney cartoons to Kinko's and try to make a copy, even for yourself, they won't let you do it. It violates Disney's copyright. Same thing if you go to a photographer and they sell prints to you. Kinko's will not make copies of those photographs because it would violate copyright law.

Good point, I stand corrected on this. I was anticipating a fair use doctrine application. I can understand your Kinko's argument as making a copy of a cartoons is not the same as copying a page or paragraph of text in which a portion of the whole is of interest. I suppose for a cartoon, it might be a photocopy of a hand. However, I do not wish to seem to knit pick this point. I would rather concede. It does seem easier to imagine the objective of photocopying is to avoid paying Disney or the photographer. This seems consistent with copyright law.

[orgopete]

Allen1 said:

@ orgopete:

Making copies or reproductions of a work, and authorizing others to reproduce, is a right which attaches solely and exclusively to the original author or copyright owner. Reference.

Strictly speaking, selling or not selling is immaterial, distribution is likewise not really the issue. These things mostly only become an issue when someone wants to sue, which is typically only done in cases where it's practical.

I stand corrected.

Quote

I think that Apple's arguing that, as the copyright holder of the OS, they expressly do not grant the right to copy that software onto a non-Apple device. That they do grant that right to anyone who legally obtains a copy of the OS and installs it onto a Apple hardware.

As you say, the purpose of copyright is to protect the author of a work from theft so that that author can profit from his creativity and produce more works. To protect the income of the copyright holder and the integrity of the work. Isn't this exactly what Apple's using it for, to protect their income and the Mac OS experience?

I believe you are exactly correct in your arguments. Will the Apple license agreement be upheld? Is this a first sale doctrine issue? I was just reading first sale doctrine, uniform commerical code, sales, lease, and license in wikipedia, I'm no lawyer, so it is too complicated for me. I feel certain that I cannot predict the outcome of this case. It is important. It is huge. The more I have followed it and read about it, the more I realize its significance.

[atsilver]

"The first sale doctrine, which traces its history to a 1908 U.S. Supreme Court decision and was codified by Congress in the Copyright Act of 1976, essentially says that the buyer of a copyrighted work may sell or give away a lawfully-made copy without the copyright holder's permission."
Good to know that after this doctrine all the pirated copies of any material are no longer infringing copyrights. From now on I know that will be protected by the "first sale doctrine" if I want to sell any copy of my CD's and DVD's I own legally. Really amazing the things one could learn about our rights when something (Psystar) wants to be a "legal pirate". Thanks Psystar! <:p