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?"
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?
I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.
Blizzard won on two arguments: first, that if a game is loaded into RAM, that can be considered an unauthorized copy of the game and as such a breach of copyright; second, that selling Glider was interfering with Blizzard's contractual relationship with its customers.
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.
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.
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...
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. The fact that they haven't managed to do that and this is what they're having to do speaks volumes about what their chances on EULA enforcements are.
...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.
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. 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.
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.
From the (limited) cases I've had involving AppleCare, they'll support what they sold you. That's it. Anything you add is fine... But unless you bought it from Apple directly, that's all they'll cover.
If you get a new video card, and install it yourself and you get no picture, you'll need to remove the card and try again before they'll step in. Which is okay for those of us who'd be adding hardware anyway.
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.
Here's my understanding of the situation: In both the Glider case and this one, we're talking about the original software being loaded into RAM potentially with third-party modifications to parts of it. This means that, even if the original software (the WoW client, and Mac OS X) was bought and paid for, and a RAM copy at runtime would be subject to the section 117 exception, there is room to argue that what is being loaded is not the bought and paid for authorized copy, but an unauthorized derivative work made by adding the third party modifications.
"Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or [...]"
So an "adaptation" of the software is allowed if it is necessary to use the software with a machine. Now a court could easily whinge its way around interpreting this as a compatibility measure, but if it doesn't, then in Psystar's case, as long as the third-party modifications are deemed by the court to be only for the purpose of enabling Mac OS X to run on a general purpose PC, then the RAM copy (and potentially all the modified copies) aren't infringing.
Anyway, I don't think this is a big obstacle to Apple; there seems to be enough case law in the US that has allowed for very broad enforceability of software licensing agreements that Apple can still probably out-lawyer Psystar into the dust for breaking their "Apple-labeled" license provision, even without a finding of copyright infringement.
It's that part of the case I'm most interested in, as "Apple-labeled" is a strange choice of wording, and Apple has in the past employed it willy-nilly (for instance in the license of Safari for Windows when they pushed out millions of copies as a selected-by-default Quicktime/iTunes upgrade [http://news.cnet.com/8301-10784_3-9904445-7.html])
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
The two copies here (and the one on psystar's server) are not.
And that's the key point. Psystar admitted to using disk duplication software to install OS X, which is almost assuredly a violation of copyright law. (PC OEMs and corporations need to obtain an special licence from Microsoft to do this.) After that it doesn't really matter how many additional copies were made.
Plus, Apple's legal strategy here is "throw the book at them" -- including traditional copyright, EULAs, derivative works, DMCA, trademarks, and patents. I wouldn't read too much into any particular argument, Apple will find something that sticks.
Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.
If I'm I'm Psystar's legal team, I'd argue they make the same unauthorized copies that Apple's hardware owners make. If the Psystar process makes unauthorized copies, then Apple's does too.
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.
I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.
This, in fact, is the logical consequence of the absurdity that is "copyright". Ultimately, when you look at something, the photons bouncing off its surface (a copy) enter your retinas whereby they trigger electro-chemical impulses (a copy) in your receptor cells and travel down axons to other cells (a copy) and end up bouncing around your brain (multiple copies).
As one can easily see, the argument of "unauthorized copies" in any medium, once precedents are established (as they already apparently are), must logically lead to convictions for "unauthorized copies" in your mind (also known as "illegal thoughts"). Otherwise some "copies" are unequal to others based on arbitrary rules pulled out of some law-monkey's ass.
This will become even more apparent once technology advances to the point where computer/brain integration will become feasible and deployed on a large scale in form of mind-enhancing implants, thus blurring the distinction between a "copy" in one's brain or one's implants.
Copyrights (as all so-called "Intellectual Property") are illogical, nonsensical make-believe results of greed overpowering common sense and as the time goes on and technology progresses, their utterly moronic nature will only become more and more odiously apparent.
This goes back to the 80's, or possibly even 70's and deals with how computers work on a fundamental level. As you know, copyright means that the rights holder is the only one allowed to authorize copies. When a program runs, it is copied from the storage medium (i.e., disk, but back then it was tape) and into RAM. That's a copy. Copyright law was modified to explicitly permit these types of copies (I believe they are termed "transient copies") for license holders.
Apple's argument goes back to this statute. Apple's license says that you can only run Mac OS X on Apple hardware. Thus, the copy from disk to RAM on non-Apple hardware is an unauthorized copy.
It makes sense, from a letter-of-the-law point of view, and I find it very interesting because by and large nobody thinks about software copying in that sense anymore, but back in the day it was a very hot issue. I'm not saying I endorse this argument, but IIRC, this is how the law is written. Also, IANAL, so if you want to know more about this, go look it up yourself.
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.
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy. End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy. End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
Really? From their Snow Leopard EULA:
A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Ugrade License for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time.
Looks like Apple doesn't grant you a license to make another copy(as they argue you do by booting). If Apple wins this, can they successfully sue their customers for making unauthorized copies when the computer boots?
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy.
Yes, but...
End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
No. Like Psystar said, 17 USC 117 [bitlaw.com] grants the owner of a copy of a program the right to make copies or adaptations as needed to run it. You don't need a license from the copyright holder; copyright law itself gives you that right.
And before you respond with "it's licensed, not sold": (1) if you purchase a DVD containing a copy of OS X, you own a copy -- that's what owning a copy means; (2) most courts have found that software is actually sold, not licensed, regardless of what the company "licensing" it wants you to think.
"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.
Unless by monopoly you mean the only computers legally allowed to run OS X and the applications written to run under OS X. When you have monopolies, you have price gouging. EyeTV ship a Haupage USB digital TV encoder, that costs twice as much as a similar Haupage encoder for Windows. I have a Logitec web cam I stupidly bought as this version was OS X supported, not knowing it was exactly the same under the white plastic as the black one sold for Windows that was $50 cheaper. Odd that Logitec feel they should charge more for supplying a web cam with no drivers (OS X sees it fine) as opposed to the Windows one which does actually come with some nice extra Windows features.
The Supreme Court indicated in Eldred v. Ashcroft that it was comfortable with the view that Copyright governs even private copying like moving a programs bits from a CD to hard disk or from hard disk to RAM. This is a legally settled matter, and Psystar is quite wrong.
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.
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.
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.
Uh oh. Imagine, if Apple wins this, then REMEMBERING A SONG OR THINKING ABOUT A MOVIE SCENE will have the MAFIAA at your door in a flash, since after all you made an "illegal copy" in your brain...
Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of section 106 [17 USC 106], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(emphasis added). The word "owner" is significant. When 17 USC 117 was originally written, it said something like possessor rather than owner, but during the ratification of this law, that was changed in Congress to owner, indicating that Congress really does intend this to apply to owners, not mere possessors.
If the purported sale of the copy that ended up in Psystar's possession was conditioned on acceptance of contractual terms that Psystar is failing to honor, it is possible they are possessor of that copy, but not owner, and thus do not get to use 17 USC 117.
Unless Apple has a contract signed by Psystar where they agreed to such terms, then Psystar is not a party to any such contract. 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.
by Anonymous Coward
on Sunday November 01, @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.
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.
They may not have a right (morally, that is), but, since the EULA states what you can run OS X on, they would seem to have a legal right.
Not everyone lives in USA. Different places have different laws. Where I am, that EULA as no validity. You can't impose a contract to use your product after I bought it. You have to make me accept that contract before I buy it. So it looks like eveybody in Quebec can go buy OS X and run it on anything they seem fit, even a toaster if they can make it work.
That is not a flawed assumption. You CLEARLY stated that you think once something is sold you should be able to do ANYTHING with it. If this means copy and redistribute those copies then that is fine right? Or are you taking back your prior statements and saying that there should be some regulations on what it means to sell something. 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).
I don't care if I lose karma over this; get the fuck off your high horse. 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. Stipulations on the sale of something is the basis of our modern society.
You are advocating anarchy through your 'morals'.
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. You want to just go out and buy shit and have control over it with no thought of the work the creators put into making it. The reasons for wanting something to be sold with conditions is not to screw over the buyer. In fact most of the time it facilitates the buyer into being able to buy (and then get to use) something that would otherwise be too expensive. By reducing the level of control over said purchased item, or by stripping 'unnecessary' qualities from it, the product or service can be sold at a reduced price. The perfect example of this is a DVD. If there were no stipulations a DVD would probably cost in the thousands or higher because anyone could copy, screen, and otherwise profiteer by the purchase of the item. By imposing limitations the price can be reduced to a more reasonable level because the product is sold for a certain purpose. In the case of a DVD; private viewing with friends and family. 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. I really hope I don't need to go into a whole economics lecture here to explain why people need money to do things.
You can argue that morals are held by individuals, 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. All you need to do to prove this is compare America to say Iran. The vastly different morals are not due statistical anomalies or rational choices in individual persons. It is due to society socializing its members. Morality is inherently based on a set of generally accepted beliefs that a society has. In some societies it is immoral to do things that are perfectly normal in other societies. Laws are generated off of morals that the general society feels so strongly about that they are willing to FORCE that moral on anyone who is wishing to live within the societal structure. i.e. If you feel like parking in a handicapped spot you will get a ticket. There is nothing inherently wrong with parking in a spot arbitrarily marked as special, yet as a society the general moral belief is that those spots should be reserved for certain people who need them more. If this was not a general moral belief of the society.. it would not exist.
So while you can blab on about what you think is correct, morals are not just opinions.
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 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.
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.
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.
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.
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.
It's Apple's OS, they developed it, spend years and millions of $$$ making it - why shouldn't they be allowed to say what machines can and can't run it?
Because the COPY of the OS the customer purchased is OWNED by the customer. They can do whatever they want with it, short of redistributing copies. It should be no different than if I bought a book; I could quote from it, cross out lines, and even read it back to front if I wanted. Yes, I know that the courts don't treat it the same; that's because the courts are wrong.
These arguments about "I'd buy a Mac if it had exactly X configuration, but seeing as they don't I'll just pirate it on my own system" have absolutely zero merit.
I absolutely agree. But the argument "I own a copy of the OS, and I own a computer with exactly X configuration, so I'm going to put my copy of the OS on my computer" DOES have merit.
Yay! Analogy time! I made the keyboard you are using right now, I invested my $$$ making it, and regardless of whether you paid it or not, I am going to forbid you from using it to type your pro apple opinion, if you do, I won't just get mad at you and promise not to sell you a keyboard again, but I will send you to hail for copyrite infrigement!11
Maybe your confusion is due to the fact that you think the GPL zealot crowd actually cares about copyright. What we care about is freedom. In the GPL's case, it is guaranteeing everyone the freedom to take a program and modify it however they desire. In this case, the concern is about the freedom to use software one has purchased however one desires. As far as I know, this has not been settled by court as copyright infringement. Incidentally, you don't have to support everything about copyright or detest it completely. You can see good and bad implications and places where there is room for improvement. Its perfectly reasonable for me to want to see GPL content covered by copyright and not desire that 40-year old books also be covered.
Unauthoriazed Copy (Score:5, Informative)
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?
I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.
Re:Unauthoriazed Copy (Score:5, Informative)
On top of that Apple has a good case here because Blizzard already won similar argument before [slashdot.org]
Blizzard won on two arguments: first, that if a game is loaded into RAM, that can be considered an unauthorized copy of the game and as such a breach of copyright; second, that selling Glider was interfering with Blizzard's contractual relationship with its customers.
Parent
Re:Unauthoriazed Copy (Score:5, Insightful)
I'd rephrase that to say Apple has an effective case... because I certainly wouldn't call what they're doing "good".
Parent
They might lose (Score:5, Insightful)
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.
Parent
Re:They might lose (Score:5, Insightful)
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.
Parent
Re:They might lose (Score:5, Interesting)
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. The fact that they haven't managed to do that and this is what they're having to do speaks volumes about what their chances on EULA enforcements are.
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. 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.
Parent
Re:They might lose (Score:5, Insightful)
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.
Parent
Re:They might lose (Score:4, Informative)
From the (limited) cases I've had involving AppleCare, they'll support what they sold you. That's it. Anything you add is fine... But unless you bought it from Apple directly, that's all they'll cover.
If you get a new video card, and install it yourself and you get no picture, you'll need to remove the card and try again before they'll step in. Which is okay for those of us who'd be adding hardware anyway.
Parent
Re:Unauthoriazed Copy (Score:5, Insightful)
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.
Parent
That might be irrelevant (Score:5, Interesting)
Here's my understanding of the situation: In both the Glider case and this one, we're talking about the original software being loaded into RAM potentially with third-party modifications to parts of it. This means that, even if the original software (the WoW client, and Mac OS X) was bought and paid for, and a RAM copy at runtime would be subject to the section 117 exception, there is room to argue that what is being loaded is not the bought and paid for authorized copy, but an unauthorized derivative work made by adding the third party modifications.
However, the section 117 exception gives a specific reason that the software might be allowed to be altered. Take a look (from http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000117----000-.html [cornell.edu] ):
"Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or [...]"
So an "adaptation" of the software is allowed if it is necessary to use the software with a machine. Now a court could easily whinge its way around interpreting this as a compatibility measure, but if it doesn't, then in Psystar's case, as long as the third-party modifications are deemed by the court to be only for the purpose of enabling Mac OS X to run on a general purpose PC, then the RAM copy (and potentially all the modified copies) aren't infringing.
Anyway, I don't think this is a big obstacle to Apple; there seems to be enough case law in the US that has allowed for very broad enforceability of software licensing agreements that Apple can still probably out-lawyer Psystar into the dust for breaking their "Apple-labeled" license provision, even without a finding of copyright infringement.
It's that part of the case I'm most interested in, as "Apple-labeled" is a strange choice of wording, and Apple has in the past employed it willy-nilly (for instance in the license of Safari for Windows when they pushed out millions of copies as a selected-by-default Quicktime/iTunes upgrade [http://news.cnet.com/8301-10784_3-9904445-7.html])
Parent
Re:That might be irrelevant (Score:4, Insightful)
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
Parent
Re:that was over a app with online play and pay to (Score:5, Funny)
that was over a app with online play and pay to play a OS is a buy one time per system and you don't pay per mouth to use it as well.
I vote for worst use of the English language ever?
Parent
Re:Unauthoriazed Copy (Score:4, Informative)
I agree, "unauthorized copy" is the key concept here.
I hate how slashdot posts these half baked articles.
What is this, the Drudge Report?
Parent
Re:Unauthoriazed Copy (Score:5, Informative)
The two copies here (and the one on psystar's server) are not.
And that's the key point. Psystar admitted to using disk duplication software to install OS X, which is almost assuredly a violation of copyright law. (PC OEMs and corporations need to obtain an special licence from Microsoft to do this.) After that it doesn't really matter how many additional copies were made.
Plus, Apple's legal strategy here is "throw the book at them" -- including traditional copyright, EULAs, derivative works, DMCA, trademarks, and patents. I wouldn't read too much into any particular argument, Apple will find something that sticks.
Parent
Apple owners would make same unauthorized copies (Score:4, Informative)
Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.
If I'm I'm Psystar's legal team, I'd argue they make the same unauthorized copies that Apple's hardware owners make. If the Psystar process makes unauthorized copies, then Apple's does too.
Parent
Re:Apple owners would make same unauthorized copie (Score:5, Insightful)
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.
Parent
Re:Unauthoriazed Copy (Score:5, Funny)
Parent
Re:Unauthoriazed Copy (Score:5, Funny)
This, in fact, is the logical consequence of the absurdity that is "copyright". Ultimately, when you look at something, the photons bouncing off its surface (a copy) enter your retinas whereby they trigger electro-chemical impulses (a copy) in your receptor cells and travel down axons to other cells (a copy) and end up bouncing around your brain (multiple copies).
As one can easily see, the argument of "unauthorized copies" in any medium, once precedents are established (as they already apparently are), must logically lead to convictions for "unauthorized copies" in your mind (also known as "illegal thoughts"). Otherwise some "copies" are unequal to others based on arbitrary rules pulled out of some law-monkey's ass.
This will become even more apparent once technology advances to the point where computer/brain integration will become feasible and deployed on a large scale in form of mind-enhancing implants, thus blurring the distinction between a "copy" in one's brain or one's implants.
Copyrights (as all so-called "Intellectual Property") are illogical, nonsensical make-believe results of greed overpowering common sense and as the time goes on and technology progresses, their utterly moronic nature will only become more and more odiously apparent.
Parent
Re:Unauthoriazed Copy (Score:5, Informative)
This goes back to the 80's, or possibly even 70's and deals with how computers work on a fundamental level. As you know, copyright means that the rights holder is the only one allowed to authorize copies. When a program runs, it is copied from the storage medium (i.e., disk, but back then it was tape) and into RAM. That's a copy. Copyright law was modified to explicitly permit these types of copies (I believe they are termed "transient copies") for license holders.
Apple's argument goes back to this statute. Apple's license says that you can only run Mac OS X on Apple hardware. Thus, the copy from disk to RAM on non-Apple hardware is an unauthorized copy.
It makes sense, from a letter-of-the-law point of view, and I find it very interesting because by and large nobody thinks about software copying in that sense anymore, but back in the day it was a very hot issue. I'm not saying I endorse this argument, but IIRC, this is how the law is written. Also, IANAL, so if you want to know more about this, go look it up yourself.
Parent
Re:Unauthoriazed Copy (Score:5, Insightful)
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.
Parent
Litigated before (Score:5, Informative)
Re:Litigated before (Score:5, Interesting)
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy. End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
Really? From their Snow Leopard EULA:
A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Ugrade License for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time.
Looks like Apple doesn't grant you a license to make another copy(as they argue you do by booting). If Apple wins this, can they successfully sue their customers for making unauthorized copies when the computer boots?
Parent
Re:Litigated before (Score:4, Informative)
This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy.
Yes, but...
End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.
No. Like Psystar said, 17 USC 117 [bitlaw.com] grants the owner of a copy of a program the right to make copies or adaptations as needed to run it. You don't need a license from the copyright holder; copyright law itself gives you that right.
And before you respond with "it's licensed, not sold": (1) if you purchase a DVD containing a copy of OS X, you own a copy -- that's what owning a copy means; (2) most courts have found that software is actually sold, not licensed, regardless of what the company "licensing" it wants you to think.
Parent
Old idea (Score:4, Informative)
Actually, wasn't the idea that copying a program from disk to RAM need specific permission, something that was ruled on very long ago?
I remember having a serious WTF feeling maybe 10 years ago when reading about a judge's ruling.
Unauthorized (Score:4, Insightful)
"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.
Re:Unauthorized (Score:5, Insightful)
They, like the media conglomerates (RIAA and MPAA), are trying to change what copyright law actually is.
Parent
Re:Unauthorized (Score:4, Interesting)
Unless by monopoly you mean the only computers legally allowed to run OS X and the applications written to run under OS X.
When you have monopolies, you have price gouging.
EyeTV ship a Haupage USB digital TV encoder, that costs twice as much as a similar Haupage encoder for Windows. I have a Logitec web cam I stupidly bought as this version was OS X supported, not knowing it was exactly the same under the white plastic as the black one sold for Windows that was $50 cheaper. Odd that Logitec feel they should charge more for supplying a web cam with no drivers (OS X sees it fine) as opposed to the Windows one which does actually come with some nice extra Windows features.
Parent
Psystar is 100% wrong (Score:5, Informative)
Re:Psystar is 100% wrong (Score:4, Insightful)
Parent
Re:Psystar is 100% wrong (Score:4, Insightful)
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.
Parent
Re:Psystar is 100% wrong (Score:4, Insightful)
Pystar isn't wrong, just illegal.
Parent
Not all that controversial (Score:5, Insightful)
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.
Re:Not all that controversial (Score:4, Insightful)
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.
Parent
Someone has to pay for Steve Jobs' livers... (Score:4, Interesting)
Uh oh. Imagine, if Apple wins this, then REMEMBERING A SONG OR THINKING ABOUT A MOVIE SCENE will have the MAFIAA at your door in a flash, since after all you made an "illegal copy" in your brain...
What Psystar is forgetting about (Score:5, Interesting)
17 USC 117 starts out thusly:
Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of section 106 [17 USC 106], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(emphasis added). The word "owner" is significant. When 17 USC 117 was originally written, it said something like possessor rather than owner, but during the ratification of this law, that was changed in Congress to owner, indicating that Congress really does intend this to apply to owners, not mere possessors.
If the purported sale of the copy that ended up in Psystar's possession was conditioned on acceptance of contractual terms that Psystar is failing to honor, it is possible they are possessor of that copy, but not owner, and thus do not get to use 17 USC 117.
Re:What Psystar is forgetting about (Score:4, Informative)
Unless Apple has a contract signed by Psystar where they agreed to such terms, then Psystar is not a party to any such contract. 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.
Parent
Re:Anyone surprised? (Score:4, Insightful)
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.
Parent
Re:Anyone surprised? (Score:5, Informative)
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.
They may not have a right (morally, that is), but, since the EULA states what you can run OS X on, they would seem to have a legal right.
Not everyone lives in USA. Different places have different laws. Where I am, that EULA as no validity. You can't impose a contract to use your product after I bought it. You have to make me accept that contract before I buy it. So it looks like eveybody in Quebec can go buy OS X and run it on anything they seem fit, even a toaster if they can make it work.
Parent
Re:Anyone surprised? (Score:5, Interesting)
That is not a flawed assumption. You CLEARLY stated that you think once something is sold you should be able to do ANYTHING with it. If this means copy and redistribute those copies then that is fine right? Or are you taking back your prior statements and saying that there should be some regulations on what it means to sell something. 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).
I don't care if I lose karma over this; get the fuck off your high horse. 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. Stipulations on the sale of something is the basis of our modern society.
You are advocating anarchy through your 'morals'.
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. You want to just go out and buy shit and have control over it with no thought of the work the creators put into making it. The reasons for wanting something to be sold with conditions is not to screw over the buyer. In fact most of the time it facilitates the buyer into being able to buy (and then get to use) something that would otherwise be too expensive. By reducing the level of control over said purchased item, or by stripping 'unnecessary' qualities from it, the product or service can be sold at a reduced price. The perfect example of this is a DVD. If there were no stipulations a DVD would probably cost in the thousands or higher because anyone could copy, screen, and otherwise profiteer by the purchase of the item. By imposing limitations the price can be reduced to a more reasonable level because the product is sold for a certain purpose. In the case of a DVD; private viewing with friends and family. 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. I really hope I don't need to go into a whole economics lecture here to explain why people need money to do things.
You can argue that morals are held by individuals, 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. All you need to do to prove this is compare America to say Iran. The vastly different morals are not due statistical anomalies or rational choices in individual persons. It is due to society socializing its members. Morality is inherently based on a set of generally accepted beliefs that a society has. In some societies it is immoral to do things that are perfectly normal in other societies. Laws are generated off of morals that the general society feels so strongly about that they are willing to FORCE that moral on anyone who is wishing to live within the societal structure. i.e. If you feel like parking in a handicapped spot you will get a ticket. There is nothing inherently wrong with parking in a spot arbitrarily marked as special, yet as a society the general moral belief is that those spots should be reserved for certain people who need them more. If this was not a general moral belief of the society.. it would not exist.
So while you can blab on about what you think is correct, morals are not just opinions.
http://en.wikipedia.org/wiki/Morality [wikipedia.org]
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.
Parent
Re:Anyone surprised? (Score:5, Insightful)
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.
Parent
No, Steve is right and you prove it! (Score:4, Insightful)
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.
Parent
Re:No, Steve is right and you prove it! (Score:4, Insightful)
Parent
Re:My brain hurts, Steve! (Score:5, Insightful)
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.
Parent
Re:My brain hurts, Steve! (Score:5, Insightful)
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.
Parent
Re:My brain hurts, Steve! (Score:4, Insightful)
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.
Parent
Re:My brain hurts, Steve! (Score:5, Insightful)
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.
Parent
Re:My brain hurts, Steve! (Score:5, Funny)
Parent
Re:Nice! (Score:4, Insightful)
Parent
Re:Slashdot--so we're against copyright now? (Score:5, Informative)
Parent
Re:Are they making this argument? (Score:4, Insightful)
No, apple is. Since their attorneys represent apple, they are apple in a court of law.
Parent