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OS X The Courts Apple

Apple Says Booting OS X Makes an Unauthorized Copy 865

Posted by timothy
from the slice-the-ram-nodes-to-find-copy-four dept.
recoiledsnake writes "Groklaw has an extensive look at the latest developments in the Psystar vs. Apple story. There's a nice picture illustrating the accusation by Apple that Psystar makes three unauthorized copies of OS X. The most interesting, however, is the last copy. From Apple's brief: 'Finally, every time Psystar turns on any of the Psystar computers running Mac OS X, which it does before shipping each computer, Psystar necessarily makes a separate modified copy of Mac OS X in Random Access Memory, or RAM. This is the third unlawful copy.' Psystar's response: 'Copying a computer program into RAM as a result of installing and running that program is precisely the copying that Section 117 provides does not constitute copyright infringement for an owner of a computer program. As the Ninth Circuit explained, permitting copies like this was Section 117's purpose.' Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"
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Apple Says Booting OS X Makes an Unauthorized Copy

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  • by smitty777 (1612557) on Sunday November 01, 2009 @02:46PM (#29943470) Journal

    There's a copy of Red October on my retina too for a couple of nanoseconds too - I suppose the lawyers will be knocking on my door pretty soon .

  • Unauthorized (Score:4, Insightful)

    by Alrescha (50745) on Sunday November 01, 2009 @02:52PM (#29943554)

    "Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"

    Since Apple's license for OS X says that it can only be run on Apple hardware, the in-memory copy is just as unauthorized as the rest of them.

    A.

  • by MsGeek (162936) on Sunday November 01, 2009 @02:53PM (#29943566) Homepage Journal

    This is pretzel logic at its worst. Memo to Apple: build a machine that has a price point between the Mac mini and Mac Pro, that isn't an all-in-one machine, and is internally expandable, and people will buy that machine from YOU rather than buy a PC and make a Hackintosh. People know the difference between a Mac and a crappy PC. They know that the Mac will be the better quality machine. They will pay more -- not a King's Ransom, but modestly more -- for Apple quality. This is why the MacBook has pwn3d most lappies for years, and why the MacBook Pro is the best damn lappie experience currently available. Build something BETTER for a little more than a Dell or a HP or a Compaq and you will have the business back. I guarantee it.

  • by Anonymous Coward on Sunday November 01, 2009 @02:55PM (#29943582)

    I hope to God you're trolling. Because as stupid as Apple's policies are, yours trumps them.

  • by Anonymous Coward on Sunday November 01, 2009 @02:56PM (#29943590)

    Apple is being paid for every copy of OS X. Perhaps they should stop selling OS X as a full standalone product then? I don't think Apple has a right to say what piece of hardware you can run OS X on. It's paid for, end of story.

    When everyone else tries to lock stuff down we scream about how evil and greedy they are. But when it comes to Apple, it's different somehow? Apple is just as greedy and as "evil" as Microsoft. They're out to make money just like everyone else.

  • Re:Unauthorized (Score:3, Insightful)

    by MakinBacon (1476701) on Sunday November 01, 2009 @03:00PM (#29943624)
    But why should users need Apple's permission to install OSX on any computer they want? They payed for it, and they are not distributing unauthorized copies to other people, so I don't see why Apple should have any legal right to dictate how users can use it. Imagine if Microsoft decreed that the only browser Windows users can install is Explorer because they never authorized Firefox. That would be the same kind of twisted logic that Apple is trying to employ.
  • by Nerdfest (867930) on Sunday November 01, 2009 @03:02PM (#29943644)
    If that was the ruling, then the law, or its interpretation are quite wrong. Just because it's the law doesn't make it right.
  • by Senjutsu (614542) on Sunday November 01, 2009 @03:07PM (#29943686)
    Yes, but Apple is making their argument in a court of Law, not a court of Nebulously Undefined Rights and Wrongs.

    The current law is the current law, and Apple is legally correct. If you believe that the current law is not optimal, that's a matter to take up with the legislature. Arguing that the lawyers and courts are wrong for following the law is downright silly.
  • Re:Unauthorized (Score:5, Insightful)

    by kimvette (919543) on Sunday November 01, 2009 @03:10PM (#29943718) Homepage Journal

    They, like the media conglomerates (RIAA and MPAA), are trying to change what copyright law actually is.

  • by mrsteveman1 (1010381) on Sunday November 01, 2009 @03:13PM (#29943758)

    The difference would be if the EULA specifically gives Apple hardware owners the right to make that extra copy.

    Psystar seems to be arguing that the owner of a copy of a program has inherent rights to load it into ram because of section 117, Apple says no, you need additional authorization you get from the EULA. If the EULA doesn't give anyone this right to a 3rd copy then you'd be correct.

  • by outZider (165286) on Sunday November 01, 2009 @03:15PM (#29943792) Homepage

    You are completely not their target market. Apparently, you want a two inch thick laptop that runs Linux and KDE. There are plenty of them. Buy them.

  • by russotto (537200) on Sunday November 01, 2009 @03:16PM (#29943798) Journal

    The copy loaded into RAM is not infringement according to 17 USC 117, but that only holds if the copy being loaded _from_ is a legal copy. So if the copy Psystar loads onto the hard drive is unlawful, the copy in RAM is a further unlawful copy. That's not controversial (as a matter of law, anyway; it's pretty stupid as a matter of fact) and not really central to Apple's case.

  • by Anonymous Coward on Sunday November 01, 2009 @03:18PM (#29943838)

    Apple hardware owner make *authorized* copies, because those copies are allowed within the terms of license Apple grants. Pystar customers are *not* covered by that license and therefore are making *unauthorized* copies.

    I think it might be silly to argue that ephemeral copies constitute copyright infringement, but there is clearly a distinction between authorized and unauthorized copies that comes down right where Apple says it does.

  • by prockcore (543967) on Sunday November 01, 2009 @03:24PM (#29943886)

    I'd rephrase that to say Apple has an effective case... because I certainly wouldn't call what they're doing "good".

  • by Firehed (942385) on Sunday November 01, 2009 @03:26PM (#29943906) Homepage

    Sort of. The $30 Snow Leopard is a Leopard upgrade license; the $170 SL/iLife/iWork pack is generally advertised as "For computers without Leopard", though the system requirements specifically state that you need an Intel Mac.

    In practice, every Snow Leopard disc is identical, whether it comes in the cheap upgrade version or the "Mac Box Set" (above), or a family pack of either (aside from a sticker on the box, there's nothing in the family packs about licensing). As such, the installation EULA is going to be the same, and I don't think there's any doubt that Psystar is in violation of the EULA - just whether doing so can constitute copyright infringement by tripping this "unauthorized" clause.

  • Re:Unauthorized (Score:3, Insightful)

    by TheGreenNuke (1612943) on Sunday November 01, 2009 @03:31PM (#29943938)

    As is the common theme is monopoly suits, it depends on what you define the market as. If the market is hardware that can legally run Mac OS X, then Apple most certainly does have a monopoly. Besides, I said monopolistic tendencies, inferring that it COULD become a problem.

    How much money will you make on sales of your hardware/software that prints "hello world" and how much will you make by suing everyone that infringes on your copyrighted software running on non approved hardware as they write their first code that prints "hello world"? I'm interested in your business model.

  • Re:Nice! (Score:4, Insightful)

    by AmunRa (166367) on Sunday November 01, 2009 @03:35PM (#29943964) Homepage
    Depends if you have a licence to run the OS in question.
  • by tjstork (137384) <(todd.bandrowsky) (at) (gmail.com)> on Sunday November 01, 2009 @03:43PM (#29944044) Homepage Journal

    Pystar isn't wrong, just illegal.

  • by Artraze (600366) on Sunday November 01, 2009 @03:45PM (#29944064)

    As I recall, the Glider decision actual is more disturbing. Essentially, they sidestepped section 117 altogether and basically said that the RAM copy is a full blown copy, and is only made legally because the ELUA allows such use. As Glider violated the EULA, making a RAM copy of WoW infringed on Blizzard's copyright.

    So not only is making a RAM copy infringement (without a license) ELUA's are also implicitly upheld. Lovely.

    On somewhat unrelated, but interesting note: Now that SSDs (and, potentially PRAM) are picking of speed, it may well be possible to to run programs directly off the HD. This would completely sidestep all this 'copying to RAM is infringement' BS

  • by 93 Escort Wagon (326346) on Sunday November 01, 2009 @03:46PM (#29944068)

    No surprise, which is why you can search my house:0 NO Apple/Mac, no iDevices, not today, not ever. Not even welcome on the property (a recent guest was surprised but accepted my position).

    So to summarize - because of Apple's heavy-handed behavior, you will not associate with anyone who does not allow you to force your beliefs on them.

    There's some irony in there, somewhere. But on the bright side, I'm guessing this doesn't affect a significant number of people at all.

  • by Anonymous Coward on Sunday November 01, 2009 @03:51PM (#29944100)

    I'm still in awe that people are so stupid and complacent to accept the concept of a software "license" that would restrict what you can do with a product you purchased for no reason other than to appease the greedy control freaks in big business. Software needs to be treated like books and that's the end of it. Copyright protection, first sale doctrine, do what you want, but don't copy for people.

    Every time I read about the heinous abuses of the legal system like this, I feel inclined to go break a few related laws out of spite.

    People need to rise up and tell the government that it needs to put an end to shit like this and other abuses of the public in general (cough cough, banking system, cough)

  • by Antiocheian (859870) on Sunday November 01, 2009 @04:00PM (#29944194) Journal

    People know the difference between a Mac and a crappy PC.

    A friend of mine thought he knew the difference but after he found out that he couldn't upgrade the video card of his 24'' Apple he decided to turn it to a tv/media center for his bedroom. He listened to my advice to upgrade the PSU of his crappy Pentium system, install a low cost RAID array, get a modern 3D card, upgrade the memory to 4 GB and finally get a high quality Unicomp keyboard and a 26'' led monitor. Except for the monitor, the upgrades cost him little and his old machine feels twice as fast as the Apple.

    He is fuming with Apple because he would really like to play a few modern games but the video card of this model cannot be upgraded. (He didn't research that possibility as he never thought it possible to get a desktop system for 2500 Euros with a crappy portable MXM video without the option to upgrade.)

    So he often comes to my apartment just to play Gothic III on my watercooled system which by the way cost only 1500 Euros and turns his Apple to dust.

    A year ago, he was about to buy a MacBook but I saved him from that mistake by asking him to compare an equally priced Lenovo. He was blown away and I think this is the time when the Apple myth started fading on him.

    I am sure you are not convinced, correct? And this is my point: Apple is right. Their secret recipe is no longer how to make great computers but how to make their users feel superior. "The difference between a Mac and crappy PC" in the eyes of a Mac user is that the PC is crappy by nature while the Mac is not. It's a delusion, but one that feeds Apple since the 90s.

  • by Draek (916851) on Sunday November 01, 2009 @04:06PM (#29944238)

    I know morals involve some opinion

    Correct, hence:

    but I think that if you develop a product you should be allowed to sell that product on your terms,

    Nice. I don't, and apparently neither does the GP.

    and the law agrees with that.

    Laws have nothing to do with morality.

    Just because someone else wants to sell a product that is a derivative of your work doesn't mean you have to let them.

    For many of us, the act of actively prohibiting third parties from modifying and redistributing your work is inherently inmoral, regardless of whether its done for profit or otherwise.

    Books, music, DvD's etc all use these sorts of (legal) protections, and while some of us may loathe the methods they use to protect their wishes, not many people would claim they shouldn't have the right to limit reasonable use. i.e. You can't buy a DVD and start screening that movie for money.

    What if we are some of those "not many people"? is one deprived of excercising his/her opinion solely because its a minority one?

    Saying Apple is being immoral in this instance would imply nearly any contract that dictates how a product may be used is also immoral based on your reasoning for the immorality (EULA stating what can be done).

    Hell *FUCKING* yeah. Limiting redistribution and modification is in some sort of a "moral gray area" for me, there are good arguments for both sides (though I tend to fall closer to the 'freedom' camp), but limiting *use* is the single biggest load of bullshit present in the huge, stinking shithole that is modern Copyright law.

    If there is an alternate reason for the immorality please let me know but as you have stated it all I see is a conflict of interest between two companies. That does not constitute immorality.

    For you. Others may feel differently and it is their right to do so.

  • by tonywestonuk (261622) on Sunday November 01, 2009 @04:11PM (#29944294)

    If I buy a book, I can legally do whatever I want with it. Read it, shred it, use it for toilet paper. If I then choose to sell the remains of the book, That I can also do this legally...just so long as I do not copy it (copyright infringement). If I buy a legal boxed copy OS X, then I should have the same rights to do as I please, which includes installing it on my own hardware regardless of it been an Apple branded box or not.

  • by jimicus (737525) on Sunday November 01, 2009 @04:12PM (#29944298)

    On somewhat unrelated, but interesting note: Now that SSDs (and, potentially PRAM) are picking of speed, it may well be possible to to run programs directly off the HD. This would completely sidestep all this 'copying to RAM is infringement' BS

    Not without some major OS (and possibly hardware) re-architecture, seeing as disks aren't usually memory mapped.

  • by Toonol (1057698) on Sunday November 01, 2009 @04:19PM (#29944364)
    It's Apple's OS, they developed it, spend years and millions of $$$ making it - why shouldn't they be allowed to say what machines can and can't run it?

    Because the COPY of the OS the customer purchased is OWNED by the customer. They can do whatever they want with it, short of redistributing copies. It should be no different than if I bought a book; I could quote from it, cross out lines, and even read it back to front if I wanted. Yes, I know that the courts don't treat it the same; that's because the courts are wrong.

    These arguments about "I'd buy a Mac if it had exactly X configuration, but seeing as they don't I'll just pirate it on my own system" have absolutely zero merit.

    I absolutely agree. But the argument "I own a copy of the OS, and I own a computer with exactly X configuration, so I'm going to put my copy of the OS on my computer" DOES have merit.
  • by JackDW (904211) on Sunday November 01, 2009 @04:23PM (#29944390) Homepage

    Why does it have to boot OS X, though? The company that sells OS X puts lots of silly monopolist conditions on how you can use it. They don't care about the "first sale" thing you mention in another post. They use DRM to lock the software to their hardware, you have to hack it to make it work.

    Seems to me that any of these by itself would be a pretty good reason to refuse to support that company. Even if you pirate OS X, you're still helping to promote it, and thus still supporting the behaviour of the company that sells it.

  • They might lose (Score:5, Insightful)

    by theolein (316044) on Sunday November 01, 2009 @04:24PM (#29944394) Journal

    I don't think Apple will lose this case, given the current legal situation, but if by some slim chance Psystar wins its case on the grounds that Apple should have no control over how their product is used as long as the software license is paid for, i.e. that the EULA doesn't hold in this case, then Apple will have to contend with a legion of people and companies doing this. On the one hand this would be the thing that would enable Apple to break Microsoft's stranglehold on the PC market, on the other it weigh Apple down with an enormous amount of support costs (unless they specifically exclude this in their EULA) and also do damage to their brand as it would get watered down. The latter is an important part of Apple's strength and I can understand them fighting this for dear life.

  • by butlerm (3112) on Sunday November 01, 2009 @04:34PM (#29944496)

    Apple is a corporation, that is headed by a chief executive officer and a board of directors. Those officials hire Apple's attorneys for the express purpose of representing Apple's legal interests. The attorneys are under their direction, and make controversial legal arguments only with their assent, explicit or otherwise.

    If the officers of Apple Computer Inc. don't think this is a legitimate or wise legal argument to be making, they should fire their attorneys and make a public retraction. Otherwise it is res ipsa loquitur all the way, i.e. the thing speaks for itself.

  • by vikstar (615372) on Sunday November 01, 2009 @04:36PM (#29944518) Journal

    No, apple is. Since their attorneys represent apple, they are apple in a court of law.

  • by shentino (1139071) on Sunday November 01, 2009 @04:38PM (#29944546)

    Once a license has been granted and rights^Wprivileges have already been exercised you run into 2 problems:

    1. Consideration already accepted by the other side cannot be revoked after the fact
    2. Promissory estoppel bars one side from revoking a privilege already exercised by the other party.

    But you are correct in that it needs to be made more explicit. Corporations get to flex their legal muscles way too much these days.

    I don't think psystar will ever survive long enough to either win OR lose the lawsuit.

  • by Anonymous Coward on Sunday November 01, 2009 @04:38PM (#29944548)

    I'm sure I'll get modded down again for speaking out about this, but I believe it needs to be pointed out.

    The reason you get modded down every time you "speak out" about this is that you always ignore the reasoned responses you got the last time you "spoke out". The most likely explanation for your behavior is that you're trolling. Do you have a better explanation?

  • by BasilBrush (643681) on Sunday November 01, 2009 @04:39PM (#29944558)

    No it doesn't. That only deals with people's rights to resell their software package (media and license.) It doesn;t allow Psystar to make a modified version of OSX to load onto their PCs.

  • by recoiledsnake (879048) on Sunday November 01, 2009 @04:42PM (#29944582)

    Yup, it's pretty hard for a fruit or a voiceless entity to make an argument.

    As long as their attorneys are authorized by Apple to represent them in court, I think it can be said that Apple's making that argument in court.

    And yes, it's the submitter here.

  • by onefriedrice (1171917) on Sunday November 01, 2009 @04:43PM (#29944588)

    If I buy a legal boxed copy OS X, then I should have the same rights to do as I please, which includes installing it on my own hardware regardless of it been an Apple branded box or not.

    Whether or not you should have the same rights is not the issue. The fact is, as the law currently stands, you don't have the rights you think you should have simply because software is not bought, it is licensed. If you cannot or will not adhere to the stipulations of the license, you have no legal right to use the software, even if other software is licensed differently. That is Apple's prerogative, and it doesn't matter if you receive the software on a disk in a box or by any other method of data transfer.

    If you don't like it, you can always continue bitching about Apple or ignore their licenses. Or you could do something proactive and try to affect change in copyright law.

  • by dangitman (862676) on Sunday November 01, 2009 @04:47PM (#29944618)

    Unless Apple has a contract signed by Psystar where they agreed to such terms, then Psystar is not a party to any such contract.

    And, as such, they don't get to run the software. Your argument is nonsensical. I guess I can start distributing unauthorized copies of Windows, because I never signed a distribution agreement with Microsoft?

    Further, if they exchanged cash (or cash-equivalent, eg check, electronic payment, etc) for a physical item such as a disc, then they did in fact *buy* a copy of a program, and they are in fact owners of it.

    No, they would be owners of a shiny plastic disc. Apple retains ownership of the software. Users of software do not become owners of the copyright held in the software.

  • by johnlcallaway (165670) on Sunday November 01, 2009 @04:50PM (#29944644)
    The basis for the litigation is simple. As I recall, the Apple license specifically excludes loading OS X on anything but Apple labeled hardware. So loading it onto and into Pystar hardware is copyright infringement because they do not have such a license.

    I applaud Pystar's attempt to create an alternative to Apple hardware. But the Apple license is pretty explicit. I think .. I wasn't able to find a current copy on their web site.
  • by fnj (64210) on Sunday November 01, 2009 @04:53PM (#29944668)

    No. Without touching on the ethics or morality part of the question, the legality of Psystar's operations is up for litigation. You may believe it is illegal, but courts have the quaint notion that such decisions are up to them.

  • by dangitman (862676) on Sunday November 01, 2009 @04:55PM (#29944684)

    If I buy a book, I can legally do whatever I want with it. Read it, shred it, use it for toilet paper. If I then choose to sell the remains of the book, That I can also do this legally...just so long as I do not copy it (copyright infringement).

    What Psystar is doing here is the equivalent of copying the book, slapping on a different cover, and selling it for profit. It's not like reselling a book, or installing Mac OS X on your personal hackintosh. It's a commercial venture based on the deliberate infringement of someone else's IP.

  • by BasilBrush (643681) on Sunday November 01, 2009 @04:55PM (#29944690)

    No it's not. And even if it were, it's Apples priveledge as the copyright owner to allow people do do it under whatever terms they chose. i.e. only on APple computers.

    It ain't rocket science.

  • by russotto (537200) on Sunday November 01, 2009 @04:58PM (#29944714) Journal

    As I have posted before, what's to stop Apple from successfully claiming that their customers are making modifications(and hence derivative copies) to the OS by installing programs and drivers and then making an unauthorized copy by booting it? Their EULA says only one copy is allowed.

    Nothing, if EULAs are upheld as overriding the sale of the software; that road leads to all sorts of absurd and obscene consequences. But Apple's argument against Psystar doesn't require EULAs to be valid.

  • by Mr2001 (90979) on Sunday November 01, 2009 @05:08PM (#29944794) Homepage Journal

    What Psystar is doing here is the equivalent of copying the book, slapping on a different cover, and selling it for profit.

    No... it's the equivalent of buying a book, slapping on a different cover, and selling it for profit.

    It's not like reselling a book, or installing Mac OS X on your personal hackintosh.

    On the contrary, that is exactly what it's like. Check your facts. Psystar resells copies of OS X that they purchased; they don't make their own copies. And the same law that gives you the right to install your copy of OS X on your personal hackintosh also gives you the right to authorize someone else (like Psystar) to do it on your behalf.

  • by webnut77 (1326189) on Sunday November 01, 2009 @05:36PM (#29945022)
    Mod up.

    To take your book analogy further: That book you buy you can read or use to prop up the short leg on your table. Or even rip it up to start a fire in the fireplace. It's your to use as you see fit.
  • Re:They might lose (Score:5, Insightful)

    by jonbryce (703250) on Sunday November 01, 2009 @05:42PM (#29945074) Homepage

    Apple don't need to support the use of their product for a purpose it isn't sold for. If you try to install OSX on a playstation, it isn't going to work, and nobody would expect it to. If you try to install it on a PC with a hacked EFI emulator, it might work, but you can't really complain if it doesn't work very well.

  • by butlerm (3112) on Sunday November 01, 2009 @05:45PM (#29945092)

    Not even close, fortunately. Go read Title 17 of the U.S. Code some time, in particular sections 101-103,107-109, and 117.

    Note especially fair use rights, archival rights, the first sale doctrine, and the right to copy as necessary to use a program on a (single) machine.

    Fair use: 17 USC 107
    First Sale: 17 USC 109
    Copy permitted if necessary to use program: 17 USC 117(1)(a)
    Archival rights: 17 USC 117(1)(b)

  • by eugene2k (1213062) on Sunday November 01, 2009 @06:49PM (#29945540) Homepage
    Prior to Steve Jobs' return, Apple was struggling to stay afloat. When Jobs came, one of the first things he did was up the major version number from 7 to 8 because the license for Mac OS 7 allowed third parties to make computers that could run Mac OS. It's just my guess but I think the reason Apple is doing this because some of the price that goes into it's computers is the price of developing the operating system. If Psystar wins this case, it will give a carte blanche to everybody else to create Mac clones, bringing Apple back into the situation they were in in 1998.

    Personally I'm rooting for Apple on this one. It's their business model, and it has benefits for their users. And Psystar apparently likes to leech off of open source projects, or maybe they just like to violate licenses - it's ambiguous since their latest product - Rebel EFI [psystar.com] - is based on an open source one - FakeSMC [netkas.org] - whose license doesn't allow commercial use.
  • by maccodemonkey (1438585) on Sunday November 01, 2009 @07:00PM (#29945602)
    If the consumer has specialty needs, then yes, I blame the consumer. If a gamer goes and buys a netbook and then complains he can't play Crysis, do you blame the netbook maker? The 24" iMac at the lowest end configuration shipped with a GeForce 9400, which is perfectly decent, even for gaming, for most average consumers. For consumers who wanted more gaming power, they gave the option of a Radeon 4850 upgrade, which is a perfectly good card for games, especially when it came out a year ago. I'm pretty sure they even stocked the higher end GPU models in the stores, but it's hard to check now that the models have changed. Any way you look at it, the guy had to go into a store, ignore the different machines, and just go for the cheapest one. I don't really mind if you buy PC's because they meet your needs better. But don't claim ignorance as a good reason as to why Apple is horrible.
  • by BikeHelmet (1437881) on Sunday November 01, 2009 @07:23PM (#29945726) Journal

    I am sure you are not convinced, correct? And this is my point: Apple is right. Their secret recipe is no longer how to make great computers but how to make their users feel superior. "The difference between a Mac and crappy PC" in the eyes of a Mac user is that the PC is crappy by nature while the Mac is not. It's a delusion, but one that feeds Apple since the 90s.

    The thing you have to remember is, Apple is a hardware company. Nokia is also a hardware company. Linksys/Cisco appears to be a hardware company. All these companies make their money off selling hardware, so they need 100% (or higher) margins.

    Exception: Apple iTunes

    Now, keeping that in mind, compare all the crapware Lenovo bundles. For an educated user like you, it's no problem wiping it out. For most people, it's less hassle to fork over a few hundred extra dollars, because if they actually use that software, they'll soon have viruses and have to pay that money anyway. But unlike you, they won't connect the dots. They'll just assume "the PC is crappy and gets viruses".

    You're fuming because you can build your own desktop for cheap - but why aren't you fuming over $700 phones($199 with contract) that cost $140 to make?

    Companies are greedy. They aim to please their shareholders, and they do a good job. I applaud Apple for not bundling crapware with their OS, and for matching prices with overpriced PC OEMs. (There are plenty :/ )

  • by butlerm (3112) on Sunday November 01, 2009 @07:30PM (#29945768)

    Once again, this isn't concerned with transfer of title

    Yes, it is. Apple's attorneys would have an enormous uphill battle fighting against centuries of common law, precedent, and the Uniform Commerical Code to establish that title to those copies did not transfer at each step of the distribution chain from Apple to Psystar.

    Did any of those transactions involve a signed lease indicating that the transaction was not a purchase at all, but rather a transferable lease to a copy that was owned by a third party?

    Apple owns the copyright, not the copy. Nor do they have any basis for the claim that they have title to copies that they delivered indefinitely in exchange for good money upfront. Nor do they have a basis for the claim that a shrinkwrap "license" is an enforceable license that governs the use of something the customer already owns. No one needs a license to use a copy they own - unless Apple owns the copy they cannot set the terms of its use beyond what is regulated by copyright.

    It is worth noting here that generally speaking a license can be retracted on demand. That is why it is a license, not a contract. If I say you can use my swimming pool, that is a license. If I change my mind, I revoke that license. Only if consideration is involved does that license become a contract. "Purchasing a license" is an oxymoron. So is "consideration free contract".

  • by Macthorpe (960048) on Sunday November 01, 2009 @07:58PM (#29945932) Journal
    Tomatoes are a fruit. What was your point?
  • by Alien Being (18488) on Sunday November 01, 2009 @08:20PM (#29946078)

    Peak Computer, Inc. had a business repairing MAI's Basic/4 computers and MAI got pissy about the "lost" service revenue.

    http://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc [wikipedia.org].

    It was that case that made it illegal to load copyrighted software into RAM without a license.

    Before that, the legality was unclear and there were many heavy-handed lawsuits brought by manufacturers (including MAI) against 3rd party service companies.

    Long after it mattered to either of them the court decided that it was ok to boot the system in order to repair it. Peak was never depriving MAI of any software sales, they were preventing MAI from using their software licenses to lock customers into their service contracts.

    Similarly, Psystar isn't depriving Apple of any software sales but the are preventing Apple from using their software licenses to lock customers into their own brand of hardware.

    Fuck Apple.

  • by butlerm (3112) on Sunday November 01, 2009 @09:25PM (#29946534)

    Psystar apparently ships the original DVDs to every customer, a proposition which if true should provide ample evidence for the claim that they did indeed purchase them. I read Apple's latest motion or counter-motion and didn't see any claim to the contrary.

    As for the further legal perpetration of the fiction that software is licensed, rather than sold in a retail distribution chain, I guess I haven't read enough to be convinced that proposition is now received common law.

    It is as I commented elsewhere, if you go to an independent auto dealer and pay them $20,000 dollars for a car, can the auto manufacturer come back and say that you have actually entered into an indefinite lease of a car (a car that in actual fact you do not own), without a signed agreement to the effect that you understand that you have entered into a lease agreement rather than a purchase agreement?

    Furthermore, I don't understand why anyone would need a license to exercise their rights with respect to a physical copy of software that they own. A license is legal permission to do something otherwise unauthorized. Do people need a license to read books that they have purchased, on the theory that they own some raw material, but not an actual copy?

    To me it seems like lawyers for software companies are trying to invent a tertium quid and get it recognized at common law, a sort of legal right which is not ownership, nor copyright, but which somehow remains with the copyright holder and lets them dictate what owners of copies may and may not do beyond what copyright law prohibits them from doing.

    That is the sort of thing that ought to take an act of Congress, and indeed Congress already has acted with 17 USC 109:

    Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

    So is a EULA (for example) based on the claim that the end user does *not* own a "particular copy" of the copyrighted work in question? The word "copy" implies identity in form and pattern. Can the user own a legitimately produced CD-ROM, without owning a "copy" of the original? Are any "copies" of software owned by anyone other than the copyright holder? -- Not according to 17 USC 109(a), otherwise it would be meaningless. Right?

  • Re:They might lose (Score:4, Insightful)

    by s73v3r (963317) <s73v3r@gma[ ]com ['il.' in gap]> on Sunday November 01, 2009 @11:49PM (#29947406)
    I don't think Apple needs to look at Microsoft to see how to make massive profits. They're doing incredibly well with their corner of the market.
  • Re:They might lose (Score:5, Insightful)

    by 99BottlesOfBeerInMyF (813746) on Monday November 02, 2009 @12:05AM (#29947496)

    but if by some slim chance Psystar wins its case on the grounds that Apple should have no control over how their product is used as long as the software license is paid for, i.e. that the EULA doesn't hold in this case...

    If the EULA held up and could be enforced then Apple would have had a legal injuction enforced against Psystar pretty much immediately and wouldn't need to resort to trying to argue flimsy scenarios like this one regarding the applicability of copyright to supposed copies of OS X made.

    You misunderstand. The EULA is a copyright license. In order for it to apply, Pystar has to have made a copy of the work, such as to disk or RAM.

    It's about the only thing in their EULA that would hold up, and they wouldn't have to provide support for anything they didn't want to.

    I don't think you understand the law very well.

    It probably wouldn't make economic sense for them to do so however. You only need to look at Microsoft for the massive profits to be had from a far larger market with a far larger supply of hardware.

    You're confusing cause and effect. MS makes huge profits because they have monopoly influence. Apple being unable to tie their hardware and software would make developing OS X unprofitable for Apple, not suddenly make them huge amounts of money. Every company that tries to compete in that market loses big time (BeOS for example). I know you think all the people making piles of money at Apple are incompetent compared to your economic brilliance and that they have somehow overlooked the idea of decoupling the markets, but the fact is, your theory is lousy.

    Of course that is moot since Apple has lots of other ways to tie their hardware and software even if the EULA clause is thrown out. If Pystar were to win completely, Apple could just stop selling their OS as a boxed copy and provide it as a free upgrade to hardware customers. Or they could require users to buy a service (like Mac.com) and provide the upgrades free as part of it. Or add some heavy duty DRM and authentication bring the DMCA into it. In short, if Pystar wins, it sets a good legal precedent, but practically just inconveniences OS X users while gaining Pystar nothing in the long run. OS X users will have to get used to entering a big serial number like Windows users.

    Pystar were clearly pretty clueless on a legal front when they started this enterprise and now are hoping to get a payoff and get out. You have to be a complete idiot to think you can include "mac" in the name of a computer you're selling despite Apple having a trademark on that term in the computer market.

  • by MobyDisk (75490) on Monday November 02, 2009 @12:19AM (#29947584) Homepage

    Personally I'm rooting for Apple on this one. It's their business model, and it has benefits for their users.

    Don't do that. You are rooting for someone to win not based on the merits of their arguments, but because you like them and think the other side are jerks. That's very dangerous.

  • by Scott Wood (1415) <scott.buserror@net> on Monday November 02, 2009 @12:26AM (#29947618)

    You realize that when you call mmap() on something that resides on a disk or similar device (as opposed to a special device such as /dev/mem), the OS will copy data to and from the disk as needed, right? And that you're not actually directly mapping the data on disk?

    Neither hard disks nor SSDs expose a memory-like interface that could be used in the manner that Artraze suggests. It can be done with NOR flash, but such memory is slow and small and not something you would want to run general purpose computing off of.

  • by Draek (916851) on Monday November 02, 2009 @12:33AM (#29947680)

    You CLEARLY stated that you think once something is sold you should be able to do ANYTHING with it

    Then you could easily produce a quote of such an statement.

    You are now clearly contradicting your own moral assertions because you are saying that there are conditions to the sale i.e. You can't do certain things with the product once you buy it (such as copy and redistribute the copies).

    Technically it'd be the government conditioning the terms of use after the sale, much like I can sell you a gun but you still can't shoot somebody with it, it's not *me* who is prohibiting you from doing so. I did state that *use* of creative works should not be limited, meaning by either the original creator nor the government, but I never did so for redistribution and in fact I conceded there were valid points for both sides.

    Current copyright is not perfect, but the idea that people should have no control over their creative works because it is "immoral" to place stipulations on the sale of something is the dumbest thing I have ever heard.

    The idea that people have an inalienable right to control how their work is used even after selling it is much worse.

    You are advocating anarchy through your 'morals'.

    Wrong, and irrelevant.

    Normally I respect ones 'morals' but I think you have clearly demonstrated you are a self interested individual. You only care how this affects you and have no considerations to who else if affected by your ideas of right and wrong.

    Wrong. Unlike you, however, I give creators the same value as users, I do not give them preferential treatment over some alleged "right" they may possess, hence my conclusions in contrast to yours.

    Without this condition DVDs could not exist because the makers of the movie would not get compensated for their time and effort but someone else would.

    Wrong. DVDs would still exist, movies would (likely) still exist, its just that DVDs would only be manufactured by, well, manufacturers, then had a movie copied to them by regular people rather than being made and sold by movie studios trying to make an extra buck.

    You can argue that morals are held by individuals

    I didn't argue, I stated. I'm merely informing you of a fact.

    but all morals are the product of socialization one way or another. Socialization is the product of a society. Society is very closely involved with shaping the morals of the individual.

    And cars are built by machines who are built by people who are (usually) created through a couple having sexual intercourse. Are cars a product of sex? 'morality' is simply how an individual feels towards the concept of certain acts, societies cannot have morality much like they cannot have feelings or thoughts, only the individuals contained therein.

    Only in the most abstract sense of morality do you end up in the zone where morality is just an opinion. The generally accepted definition requires some sort of semi-logical justification of the view you take.

    No, the generally-accepted definition is that of mere opinions, the whole concept of logical justifications and analysis of morality is what we call Ethics [wikipedia.org] which is only related to the concept of morality as gravity is to Physics.

  • by vaporland (713337) on Monday November 02, 2009 @12:48AM (#29947742) Homepage
    Sherwin Williams doesn't tell me that I can't use exterior house paint on interior walls. They might recommend otherwise, but I can do what I want with their paint - I paid for it.

    Prescription drug makers love it when something like Botox, which was originally developed as a treatment for crossed eyes, is used for "off-label" applications. Now, airline tickets are another matter, but it's not really good marketing to justify your shitty business practices because airlines get away with something similar...

    Granted, if I use these products in a manner inconsistent with their labeling, I assume the risk of doing so.

    I couldn't give two fucks about the BSA or your Adobe example (I seriously doubt BSA is going to sue one individual for upgrading a pirated serial, but this has nothing to do with the discussion at hand).

    In my theoretical case, I paid for OS X and I can damn well use it how I please. Apple got their money. If they don't want us using OS X on third party hardware, maybe they should stop selling upgrades, embed the OS in ROM and only sell updated OS software with new machines - they'd love that.

    If I am Apple and some whiner calls complaining that their Dell Mini 9 got bricked by a software update, it's tough luck, Charlie. It's funny though that Dell support will tell you how to install OS X on your Dell Mini 9, and I don't see the BSA going after them.

    Isn't it also funny how Dell has made sure that certain models of their laptops are plug compatible with Macs, which allows you to install OS X onto them without hacking them first...

The sooner all the animals are extinct, the sooner we'll find their money. - Ed Bluestone

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