Forgot your password?
typodupeerror
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?"
This discussion has been archived. No new comments can be posted.

Apple Says Booting OS X Makes an Unauthorized Copy

Comments Filter:
  • Unauthoriazed Copy (Score:5, Informative)

    by fidget42 (538823) on Sunday November 01, 2009 @03:43PM (#29943452)

    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.

    • by sopssa (1498795) * <sopssa@email.com> on Sunday November 01, 2009 @03:49PM (#29943504) Journal

      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.

      • by prockcore (543967) on Sunday November 01, 2009 @04:24PM (#29943886)

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

        • They might lose (Score:5, Insightful)

          by theolein (316044) on Sunday November 01, 2009 @05:24PM (#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.

          • Re: (Score:3, Funny)

            by bhtooefr (649901)

            Or they just require a paper license agreement to be signed pre-sale for all sales of OS X.

            Problem solved.

          • Re: (Score:3, Interesting)

            by fafaforza (248976)

            I don't think that Apple now, or in the future, would offer support for OSX installed on non-Apple hardware. So the argument that it will raise their support costs is bogus. Do they even support all the addon hardware (video, audio cards, etc) that you could put into your legit Mac now? Probably not.

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

              by lorenlal (164133) on Sunday November 01, 2009 @07:05PM (#29945232)

              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.

          • Re:They might lose (Score:5, Insightful)

            by jonbryce (703250) on Sunday November 01, 2009 @06:42PM (#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.

            • Re: (Score:3, Interesting)

              by mwvdlee (775178)

              If - by some miracle - Apple would be legally forced to allow 3rd parties to install OSX on non-Apple hardware they would be knowingly selling OSX for non-Apple hardware. Wouldn't that automatically give them SOME support requirements?

              Can't Apple just lower the service level for OSX?

              How do companies like Microsoft and Red Hat handle this?

          • Re:They might lose (Score:5, Interesting)

            by segedunum (883035) on Sunday November 01, 2009 @08:24PM (#29945728)

            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.

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

              by s73v3r (963317) <s73v3rNO@SPAMgmail.com> on Monday November 02, 2009 @12:49AM (#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 @01:05AM (#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.

              • Re: (Score:3, Interesting)

                by drinkypoo (153816)

                You misunderstand. The EULA is a copyright license.

                The EULA is not a copyright license. The EULA is a use license. That's why it's the end user licensing agreement, and not the purchasing agreement. P.S. It's also not a legal contract, because you didn't sign it. ESPECIALLY as the user in a corporate environment, where you never saw it.

                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.

                So, this is about copyright, but you think the EULA applies when it's a use license and not a distribution license (it does have some stuff about distribution too, but it's redundant to copyright law) and now you're talking a

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

            by dave87656 (1179347) on Monday November 02, 2009 @03:25AM (#29948128)

            On the one hand this would be the thing that would enable Apple to break Microsoft's stranglehold on the PC market

            Apple doesn't want to break MS's stranglehold on the PC market. It works out nicely for Apple and MS. Apple gets a niche market for machines which are significantly more expensive and MS makes sure the MS Office runs on their PC's as long as Apple doesn't tread on their turf.

            Apple could have ported OSX to PC architecture long ago (at least since they moved to Intel).

      • by rakslice (90330) <<rakslice> <at> <gmx.net>> on Sunday November 01, 2009 @04:26PM (#29943900) Homepage Journal

        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])

        • by Artraze (600366) on Sunday November 01, 2009 @04:45PM (#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

          • Re: (Score:3, Insightful)

            by jimicus (737525)

            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.

            • Re: (Score:3, Informative)

              by savuporo (658486)
              Execute in Place ( XIP ) from flash is very common on low-end embedded hardware, especially with System-On-Chip machines having internal flash on chip. Most ARM7 ( not to be confused with ARMv7 ) systems out there probably do this. And that is a very very big segment of CPU market.
    • Re: (Score:3, Interesting)

      by recoiledsnake (879048)

      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.

      No, what they're clearly saying from their brief is that you're making an additional copy of the program by loading it into RAM. If Apple wins can MS successfully sue it's customers for having two copies of Windows or Office but license for only one?

      • Re: (Score:3, Informative)

        No, what they're clearly saying from their brief is that you're making an additional copy of the program by loading it into RAM

        You are making an additional copy. This is well settled, both in law and in computer engineering.

        If Apple wins can MS successfully sue it's customers for having two copies of Windows or Office but license for only one?

        No, because that second copy in RAM is allowed both by Microsoft's EULA and by copyright law itself (see 17 USC 117).

    • by BlueBoxSW.com (745855) on Sunday November 01, 2009 @03:57PM (#29943600) Homepage

      I agree, "unauthorized copy" is the key concept here.

      I hate how slashdot posts these half baked articles.

      What is this, the Drudge Report?

      • Re: (Score:3, Informative)

        by recoiledsnake (879048)

        I agree, "unauthorized copy" is the key concept here.

        I hate how slashdot posts these half baked articles.

        What is this, the Drudge Report?

        The unauthorized copy claim is already covered in the first two copies claims that Apple made. This is about an additional one that Apple claims that happens when the computer is booted.

    • by leftie (667677) on Sunday November 01, 2009 @04:04PM (#29943664)

      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.

      • Re: (Score:3, Insightful)

        by mrsteveman1 (1010381)

        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.

        • Re: (Score:3, Informative)

          by shentino (1139071)

          First sale doctrine means that Psystar already has the rights the EULA is trying to hoard for apple hardware owners.

          • by BasilBrush (643681) on Sunday November 01, 2009 @05:39PM (#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 Anonymous Coward

        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 dontmakemethink (1186169) on Sunday November 01, 2009 @04:11PM (#29943728)
      Careful, you just made an unauthorized copy of a registered trademark on my monitor!
    • by IgnoramusMaximus (692000) on Sunday November 01, 2009 @04:39PM (#29944004)

      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.

    • by bahamat (187909) on Sunday November 01, 2009 @05:51PM (#29944648) Homepage

      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.

    • by Alien Being (18488) on Sunday November 01, 2009 @09:20PM (#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.

  • Litigated before (Score:5, Informative)

    by metaomni (667105) on Sunday November 01, 2009 @03:45PM (#29943466)
    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.
    • Re:Litigated before (Score:5, Interesting)

      by recoiledsnake (879048) on Sunday November 01, 2009 @04:01PM (#29943630)

      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?

    • Re:Litigated before (Score:4, Informative)

      by Mr2001 (90979) on Sunday November 01, 2009 @05:44PM (#29944590) Homepage Journal

      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.

    • Re: (Score:3, Insightful)

      by johnlcallaway (165670)
      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 recoiledsnake (879048) on Sunday November 01, 2009 @03:48PM (#29943494)

    Groklaw and PJ seem to have turned the site into a slanted conspiracy site. She was insinuating that MS could be likely behind Psystar(why would MS risk invalidating EULAs on which their cash cows thrive?). Even in this article, PJ doesn't seem to defend the freedoms that she seems to hold dear in her Linux vs. SCO articles. Infact she seems to hold the DMCA dear and Groklaw has gone from giving a nice objective look at things to becoming like BoycottNovell, which is another site operating on anti-MS-at-all-costs grounds. She even fails to highlight the egregious abuse of copyright law that Apple is trying here which would ruin freedom to even run a program without paying for double licences. In fact she appears to side with Apple on this.

  • Old idea (Score:4, Informative)

    by DoofusOfDeath (636671) on Sunday November 01, 2009 @03:49PM (#29943516)

    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)

    by Alrescha (50745) on Sunday November 01, 2009 @03:52PM (#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.

    • Re: (Score:3, Insightful)

      by MakinBacon (1476701)
      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.
      • Re:Unauthorized (Score:5, Insightful)

        by kimvette (919543) on Sunday November 01, 2009 @04:10PM (#29943718) Homepage Journal

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

      • Re: (Score:3, Informative)

        by truthsearch (249536)

        But why should users need Apple's permission to install OSX on any computer they want?

        Because when you "buy" software you aren't actually buying the software. You're buying into a licensing contract. That contract can limit you in any way that doesn't break any laws. It can limit what hardware it's used on.

        People may not like, but Apple isn't a monopoly. They can choose something with different licensing terms (or no license at all) if that's their preference.

  • by Senjutsu (614542) on Sunday November 01, 2009 @03:53PM (#29943568)
    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.
  • by RichMan (8097) on Sunday November 01, 2009 @04:12PM (#29943746)

    I don't know who to root for here. If apple wins then all CD/downloadable music is then by the nature of the distribution system given a derivative allowed copyright license when sold. As the only way to play it is to make several derivative copies of the material. Where the base structure is rearranged and then finally processed Digital to Analog.

    1) CD/base store
    2) CD buffer, linked associated chain
    3) dram copy of data, another linked associated chain with OS and application page tracking
    4) audio card input buffer, another linked associated chain
    5) audio card processor, digital to analog conversion and final digital encoded analog value, then analog sound

    The RIAA and MPAA are going to want to weigh in on this if it goes anywhere.

  • by russotto (537200) on Sunday November 01, 2009 @04:16PM (#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 Dunbal (464142) on Sunday November 01, 2009 @04:17PM (#29943824)

    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...

  • by harlows_monkeys (106428) on Sunday November 01, 2009 @04:27PM (#29943914) Homepage

    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.

    • by The Cisco Kid (31490) on Sunday November 01, 2009 @05:12PM (#29944300)

      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.

      • Re: (Score:3, Insightful)

        by dangitman (862676)

        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.

    • Re: (Score:3, Informative)

      by Todd Knarr (15451)

      True, but UCC Article 2 section 401 [cornell.edu] has something to say on the matter, specifically that title to the goods passes to the buyer at the time of delivery by the seller unless there's an explicit agreement otherwise. And that agreement has to be in place before delivery, otherwise title's already passed and the buyer can simply refuse the new agreement and retain title. And you'll note that in most software sales there is no explicit agreement entered into before the clerk hands you your package. There's only

Sentient plasmoids are a gas.

Working...