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OS X The Courts Apple Hardware

Psystar Loses Appeal In Apple Case 258

Posted by timothy
from the sir-can-I-have-another dept.
The dispute between Mac cloner Psystar and Apple has been a long and twisty one; now, reader UnknowingFool writes that "Last week, the U.S. Ninth Circuit Court of Appeals ruled mostly against Psystar in their appeal of their case with Apple. The Court found for Apple in that they did not misuse copyright by having conditions in the OS X license. Psystar won on one point in which some of the court orders should have not been sealed."
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Psystar Loses Appeal In Apple Case

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  • ...but not really unexpected. Apple does have good lawyers.
    • by MightyYar (622222) on Sunday October 02, 2011 @01:35PM (#37584042)

      It's not too bad - what do you think would happen to Linux's GPL if the court had ruled that all you have to do to ignore the distribution license is buy it from someone else? You can't just buy a copy of an OS, make a copy, and then sell the copy. For that you need a license. In the case of Apple, they obviously won't give Pystar a license. In the case of Linux, the GPL allows you to do this - but then you need to provide the source in a reasonable way.

      • by EdZ (755139) on Sunday October 02, 2011 @01:43PM (#37584084)

        You can't just buy a copy of an OS, make a copy, and then sell the copy.

        As I understand it, this would only apply in Pystar's case if "installing OS X from it's original media" counts as "making a copy". IIRC, they purchased install media from Apple, installed it to non-apple hardware, then sold the hardware and the install media together.
        So far as I can tell, selling the bare system, the install media, and the method of installation alltogether as a bundle should be A-OK (install media under first-sale), but pre-installing it then selling the same thing is somehow doubleplusungood.

        • by hedwards (940851)

          It's much worse than that, it means that I can't buy a copy of OSX and install it on my own non-Apple hardware without violating their EULA which is now legally enforceable. What's more the court chose to look the other way as the software was being advertised as being sold when really it's being licensed and as a matter of course stripping a significant amount of consumer rights in the process.

          I'm sure this will make those free market morons happy that consumers have even less choice than they previously d

          • Re: (Score:3, Insightful)

            I'm sure this will make those free market morons happy

            Have you ever carried on a conversation with a libertarian or an objectivist, or whomever else you might classify as a "free market moron?" They would tell you that Psystar was in the right, that Psystar was contributing in a positive way to the economy and to technology (by lowering the price of hardware needed to run Mac OS X), and that Apple is abusing the justice system by using it to attack a legitimate competitor.

            • Except the cost of an OSX disc almost certainly doesn't cover the cost of development. It covers the cost of a replacement disc basically. The whole package that Apple offers is what funds their business so killing that off would in turn kill of Psystar and having a truly free market still doesn't given Psystar the right to use and make money from Apple's trademarks.
          • by RotateLeftByte (797477) on Sunday October 02, 2011 @02:37PM (#37584310)

            If you install your legally bought copy of OSX on some non apple hardware then probably yes it is illegal.
            However,
              making your own hackingtosh is not going to worry Apple. The words 'small fry' come to mind.
            Paystar were trying to make a business out of it.
            That was big enough to get Apple's attention.

            In some ways this is similar to HP. you can get a 'hobby' license for VMS for free. Use that free copy of VMS on a commercial venture and the HP lawyers will be after you.

            In some ways this is similar to Oracle. you can download a copy of their RDBMS for free. Use that copy in a production environment and Oracle's lawyer will be after you.

            Notice a pattern?

          • Um no. If you followed any part of this case what it says is that Apple like any software developer like Linus or Microsoft can impose conditions on the use of their software. In the case of Apple you cannot modify and resdistribute without their permission. In the case of the GPL, the source code of modifications must also be released. It does not affect Hackintoshes other than Apple does not have to support OS X on those boxes.
          • I'm sure this will make those free market morons happy...

            They'd have to be morons indeed to be happy about this most emphatically anti-free-market ruling!

            Non-moronic free-market advocates understand that government restrictions such as copyright itself (let alone constructs derived from it, such as EULAs) make the market less free.

            • by hedwards (940851)

              Thank you, for actually getting it. There's plenty of free market morons out there that will suggest that the solution is for people to just not buy OSX rather than the real free market solution to the problem which would be to tell Apple to shut up and accept that they sold a copy and that the buyer gets to do with it what he or she pleases. It might be that they opt to use it for skeet shooting or on unlicensed hardware.

          • OS X is much cheaper than windows mainly because it's not meant to be used on other hardware. The whole package is paying for the hardware and the software. So I don't blame Apple for getting annoyed about it.They've chosen business model different to MS that doesn't make it wrong and you can still install os x on any PC but someone can't run a business based on that. Given how many people torrent software and ignore copyrights I'm sure this will stop no one from doing it on their own.
      • by Nursie (632944)

        Is that what Psystar were doing though?

        Is it really as cut and dried as them buying one copy and selling multiple copies from that?

        I thought they bought one copy *per customer*, installed and shipped it to that customer. The only transgression was that they installed it on non-apple hardware.

        • by hedwards (940851)

          The nub of the case is that Apple licenses the software rather than sells it and has the right to control how the copy is used even after they sell it to the customer. Which is bullshit, bordering on fraud considering how the products are being advertised, but ultimately is now precedent.

          The only upside to this is that if they're licensing the OS rather than selling it, those that lose their discs or where the discs are damaged should be able to make new copies from a friend to replace their disc or back up

          • The only upside to this is that if they're licensing the OS rather than selling it, those that lose their discs or where the discs are damaged should be able to make new copies from a friend to replace their disc or back up their discs for safe keeping as they're licensed rather than bought.

            Ha! That's a good one!

            You didn't think logic and the good of the consumer mattered in intellectual property law, did you?

          • The nub of the case is that Apple licenses the software rather than sells it and has the right to control how the copy is used even after they sell it to the customer. Which is bullshit, bordering on fraud considering how the products are being advertised, but ultimately is now precedent.

            Hello? That is exactly how everyone from MS to IBM describes their software. The court of appeals noted that. Why single out Apple for something the entire industry does. Even in the case of open source software, it is the same. You don't own GPL software; you license it.

            • by hedwards (940851)

              Because they're the ones that brought the case to court. There's a lot of bad things in EULAs in general, but Apple is the one that brought the case to court that ultimately settled the issue.

      • The problem is the definition of copy, and this is where we get into the mess of EULAs. You should not need a copyright license to use a product that you purchased for its intended purpose. OS X does not run from the install DVD, it needs to be copied onto a hard disk to run. This technicality is what allows the EULA to exist. The court found that this is not a misuse of copyright, which means that it's a strong legal precedent saying that you can put any term in the EULA that you want. This is a probl

        • While it likely would have shot their prices to hell(at least without larger economies of scale than Pystar was ever likely to have), I would have been very interested to see the legal showdown had Pystar simply made it utterly trivial for the end user to violate the EULA; but simply performed a legitimate resale themselves...

          Image, for sake of hypothesis, that they had purchased a legitimate retail DVD, for each system, loaded it into the system's optical drive, and then slapped a skeletal little script
        • I suppose the closest analogy would be selling a Linux laptop with nVidia drivers preinstalled, which would be violating the GPL.

          Why wouldn't that fall under the system libraries exception?

        • I suppose the closest analogy would be selling a Linux laptop with nVidia drivers preinstalled, which would be violating the GPL.

          Hmm, what about almost every Android phone, which come with proprietary kernel modules? I don't think the whole distro becomes subject to the GPL just because it has a GPL kernel.

        • by burris (122191)

          OS X does not run from the install DVD, it needs to be copied onto a hard disk to run. This technicality is what allows the EULA to exist.

          Wrong, see 17 USC 117 (a). The license agreement exists because the software publisher puts it there.

          The court found that this is not a misuse of copyright, which means that it's a strong legal precedent saying that you can put any term in the EULA that you want.

          No, the court found there was no misuse of copyright because the terms did not prevent Psystar from creatin

      • by e70838 (976799)
        "You can't just buy a copy of an OS, make a copy, and then sell the copy. For that you need a license."
        No !
        Trade laws define the rules that protect consumers by defining their rights and obligations. Even if many politicians are corrupted, this limits the way consumers can be screwed.
        A EULA can not restrict, it can only extend our rights. Otherwise, it is outlaw.
        Vocabulary shift is the general way to manipulate. License if the term used by the bad guys. When I go to the store to buy a software, I do not
        • by MightyYar (622222)

          I do not rent it and I may use it in any legal manner.

          That's just not true.

          Copyright itself is completely artificial - don't look for any sense of order or justice in it. Humans share information naturally - it is unnatural to restrict it.

          In that context, why are you arguing with these judges on the interpretation of the law? Maybe the law should be changed to do as you say - only allow the EULA to extend additional rights. I'm fine with that. I happen to think non-commercial copyright should be abolished and commercial copyright should be set to a short term,

    • by msobkow (48369) on Sunday October 02, 2011 @01:41PM (#37584072) Homepage Journal

      There was never any question that Pystar was in the wrong. Their activities were blatantly and obviously illegal.

      Their whole market was based on selling hardware to run software that wasn't licensed to run on that hardware.

      Their lawyers would have had to be completely incompetent buffoons to lose the case.

      • by hedwards (940851) on Sunday October 02, 2011 @01:52PM (#37584120)

        AFAIK this is the first instance where a court has backed Apple's ridiculous claims that they can tie the use of their OS to their hardware by simply adding a clause to their EULA. In the past it wasn't possible for the simple reason that they were using an incompatible architecture.

        I'll interpret this as I should, evidence that the justice system in the US is broken and desperately in need of reform.

        • by jimicus (737525)

          I can think of at least one way Apple could have dealt with this even if they hadn't relied on the EULA.

          In order to have a useful business model, Psystar needed to advertise "runs Mac OS X". Which is a trademark of Apple. Obviously Apple aren't going to sue an authorised reseller for using their trademark, by Psystar were never an authorised reseller.

          Other companies have already done something similar to kill grey-market products (cf. Sony and Lik-Sang, Levis and Tescos)

        • by jo_ham (604554)

          Cool, so I can take GPLv3 licensed software and make a Tivo box!

          I mean, I don't have to actually follow the licence, right? That seems to be what you're saying.

          I'll make my Tivo box and then sell it and I'll save money on the OS because I can get Linux for free.

          Oh what's that? You want the source? Why should I give that to you? I mean, it says I have to in the licence, but I can ignore that, right?

        • So if MS copied parts from Linux, modified them and sold them without releasing any source code, you would support MS and not Linux. Because the GPL expressly forbids that kind of action. These clauses are not new to software.
      • Their activities were blatantly and obviously illegal.

        Really? When last I checked, they were building clones of Apple computers, and making it possible to install Mac OS X on those clones. How is that obviously illegal?

        • by hitmark (640295)

          I think he may be referring to using drive imaging to quickly provide preinstalled OSX (pretty much what HP, Dell and the rest do to have preinstalled Windows. And i suspect Foxconn also do so for the computers the produce for Apple).

          Had they instead shipped the system with no OS installed, or installed each from the boxed copy they packed alongside (and bought legally from Apple), then Apple may have had a harder time showing breach of copyright.

          Anyways, all this will be a moot point now that Apple will pr

          • Apple provide a copy on thumb-drives and if I wanted to; with the copy I downloaded from the App store I have used it to install on other machines. People cleverer than me will get it to work on non-Apple hardware.

        • by msobkow (48369) on Sunday October 02, 2011 @03:38PM (#37584582) Homepage Journal

          The Apple license explicitly forbids installation on non-Apple hardware. You may not agree with those terms, but that does not give you the legal right to IGNORE those terms.

      • by vux984 (928602) on Sunday October 02, 2011 @02:24PM (#37584246)

        Their activities were blatantly and obviously illegal.

        violating a licensing agreement is not "illegal"

        Their whole market was based on selling hardware to run software that wasn't licensed to run on that hardware.

        The real problem is that Apple's market is based on selling software with terms that dictate what hardware you use it with.

        What else can you SELL and then dictate how it be used to the customer? If I as a copyright holder sell you a copy of my CD do I get to dictate what brand CD player you use?

        Yet apple gets to sell software, and then dictate what brand of hardware you use it with. And if you don't do as they say, then they argue the software is "unlicensed" (since when do you need a license to use something you bought?!). By "buying" it you have the right to use it.

        But then if you install it you are making a "copy" and violating copyright law. And that makes it illegal.

        Except that you don't actually need a license to install software you bought a copy of. The act of purchasing a copy gives you the right to install it.

        You don't need an explicit license to put the software you bought on a hard drive for use, or for that copy to be copied into ram for use, or for portions to be copied into l1/l2/l3 cache for use, or for portions to be swapped out to disk during hibernation.

        So it is absolutely an abuse of copyright law to argue that the copy Psystar made to install the software is unlawful "distribution".

        That the courts went along with Apple's whole licensing installation copies farce is a tragedy.

        • by hitmark (640295)

          "(since when do you need a license to use something you bought?!)"

          Since copyright got extended to industrially stamped audio recordings, at least. It is one of those dirty little topics that they do not want to talk about, that what your getting for your money is a time unlimited license to enjoy the recording in the format it is sold to you.

        • by Telvin_3d (855514) on Sunday October 02, 2011 @02:51PM (#37584360)

          What else can you SELL and then dictate how it be used to the customer?

          Well, I'd think all software released under the GPL and similar licenses would qualify. Particularly GPL3 which was explicitly created to prevent released software from being run on non-compliant hardware. You don't like Apple restricting what hardware their software can run on? Fine, but any loss for Apple in that area is a direct blow to the enforceability of the Open Source license of your choice.

          • No. The GPL does NOT prevent you from downloading the software and not being able to install it. It prevents you from downloading and then redistributing it without making an offer for the source code. While they do not have to package the source with the binary download, they have to be able to give you the source for the program. The developer is allowed to charge a fee that makes sense to cover the costs of the CD or server bandwidth.

            Also, a developer is allowed to charge for the binary, but again has
        • by msobkow (48369)

          The act of purchasing a copy gives you the right to install it.

          No it does not. It gives you the right to RETURN the software if you decide you don't agree with it's license. It does NOT give you the right to IGNORE the license.

        • So it is absolutely an abuse of copyright law to argue that the copy Psystar made to install the software is unlawful "distribution".

          Um, what?!?!

          That is pretty much the pure purpose of copyright law - to prevent people/companies from illegally copying your material and selling it on their own.

          I know /. has its own view of what copyright should be but let's at least recognize what it actually is. Psystar didn't have a leg to stand on - they were making illegal copies of OSX and selling it. That is about as close to the the pure definition of copyright infringement as one can get.

          • Except that I can buy a licensed copy Windows, install it on a computer, and then sell that computer to you without it being considered a violation of copyright law. The question here is whether or not Apple can use copyright law to prevent you from installing a licensed copy of Mac OS X on a computer without an Apple logo; the courts have ruled that Apple can do this and that it is not overstepping the bounds of copyright law. It was not obvious that Psystar could not installed legally purchased copies o
            • But you cannot buy a copy of Windows, install it on 1000 computers, and then sell those to 1000 different users.

              That. Is. Copyright. Infringement.

              Odds are Apple wouldn't have been able to sue for copyright infringement _IF_ the versions of OSX on the systems had each been bought and paid for. They weren't, however. They were copies made from a single copy.

              That. Is. Copyright. Infringement.

              Really, is it that hard to understand?
            • Except that I can buy a licensed copy Windows, install it on a computer, and then sell that computer to you without it being considered a violation of copyright law. The question here is whether or not Apple can use copyright law to prevent you from installing a licensed copy of Mac OS X on a computer without an Apple logo; the courts have ruled that Apple can do this and that it is not overstepping the bounds of copyright law. It was not obvious that Psystar could not installed legally purchased copies of Mac OS X on a non-Apply computer prior to this case, because it was not clear that a license that forbids such installations is legally enforceable.

              Technically you licensed Windows from the OEM. As a consumer, MS and OEM don't really care that you did so. However if you had a business that refurbished old computers, there are violations of the license agreement that come into play depending on who originally bought Windows. That's why many ebay sellers and second hand dealers wipe out Windows and explicitly tell you that the computer does not come with Windows installed.

              The question was never if Apple can prevent consumers from installing on OS X on

              • The question was never if Apple can prevent consumers from installing on OS X on hackintoshes

                Hm...if my memory serves me, that was exactly what Psystar was accused of illegally doing, installing Mac OS X on a hackintosh, as well as transferring the computer to someone else. Psystar claimed that the EULA was not enforceable, and the court ruled against them.

                • So if you ignore the fact that Psystar wasn't a consumer and was a business then you might have had a point. Also if you ignore that the courts have different stances between personal use and commercial use.
          • PSYSTAR DIDN'T MAKE ANY COPIES!

            All it did was preinstall the software -- which is specifically allowed by 17 U.S.C 117 -- and resell the original copy.

  • by arbiter1 (1204146)
    What if Microsoft did this today or even years ago? I don't think they would got off Scott free like apple does on this crap where they limited their software.
    • by jimicus (737525)

      Microsoft have already got legal history of being a monopoly.

      Being a monopoly isn't per-se illegal, but abusing it is. So it wouldn't be a great stretch to say "the rules would be different for Microsoft".

  • by wesgray (1827286) on Sunday October 02, 2011 @02:57PM (#37584374)
    Never read so much uninformed, belligerently ignorant drivel, by posters that don't know what the word license means, or even that Apple only distributes OS-X as an upgrade outside the purchase of a Mac system.
    • by Anonymous Coward

      When Snow Leopard released in 2009, you could buy both an upgrade option (~$29 and there were other assorted family packs of upgrades) and if you didn't have Leopard (10.5), there was a full version option (it was the Mac Box Set ~$169), which came with bundled with iLife and iWork since Tiger wasn't considered an upgrade option for the Snow Leopard installer. Tiger also had a full install box you could get for ~$199 back when it released a few years before.
      It has only been with the new Lion release that

      • No all retail versions of OS X are upgrades because all Apple machines since 2001 were sold with OS X installed. You can use it to do full installs in case you lose your HDD but they are considered upgrades. The only thing the disc detects is whether your hardware is Apple and if it is compatible.
      • by drsmithy (35869)

        When Snow Leopard released in 2009, you could buy both an upgrade option (~$29 and there were other assorted family packs of upgrades) and if you didn't have Leopard (10.5), there was a full version option (it was the Mac Box Set ~$169), which came with bundled with iLife and iWork since Tiger wasn't considered an upgrade option for the Snow Leopard installer. Tiger also had a full install box you could get for ~$199 back when it released a few years before.

        They're both still upgrade licenses, just upgrades

  • by Zergwyn (514693) on Sunday October 02, 2011 @03:38PM (#37584586)

    To my mind, software upgrades are an economically efficient and pro-user offering. They are good for both the production and use side of the equation, allowing users to pay directly for the additional cost of development since their last version rather then all the original work and value that went into the product. They allow developers to reward their own supporters and more efficiently allocate resources. Additionally, "upgrades" should be (again, from a user perspective) simply full versions, identical, except cheaper and for existing users. This is how all commercial software I use works as well.

    However, the entire concept of upgrades depends completely on legal licensing: that I can have a clause that says "you may not use this unless you previously owned a full version". I already see a number of posts, both here on Slashdot and on other forums (such as the comments with the Ars Technica article on this story), that are enraged at the result, and that argue that Psystar was "adding value" by "lowering hardware costs". The underlying argument is that, if a piece of software is sold, that should be that. However, how do those of you who argue for that square it with upgrading? Do you simply agree with the App Store take, where upgrades don't exist at all? Or do you have some other way of squaring things away?

    As things have existed, Mac OS X offerings have all been upgrades and have been priced accordingly. There seems to be a reasonable consideration on both sides here: buyers pay less money, but in exchange have the restriction of needing to have a Mac as Apple has chosen to build their development around an integrated model. Do some of you think that such integrated models should be illegal, regardless of what benefits they offer? Should Apple be required by law to sell a "full" version of Mac OS X, and would you actually be willing to pay what that might cost (ie., if they said "full version, $400")? I'm genuinely curious about people's thoughts around this.

    • by Sancho (17056) *

      Honestly, genuinely, and without sarcasm, if we live in a country where we can be forced to buy health insurance, I think that Apple should be forced to sell full versions of their software. Once we throw freedom to engage in commerce as we see fit out the window, there are a whole host of pro-consumer regulations I'd love to see enacted.

    • However, the entire concept of upgrades depends completely on legal licensing

      No it doesn't; you could sell what amounts to a bunch of patches, using previously installed components of the system that did not change. Making it robust is a technical challenge, but isn't the entire argument that we are paying for people to solve technical challenges?

  • They have Augusto, where a CD that is mailed to DJs with a sticker that says "promotional use only, not for sale" still counts as a sale and the doctrine of first sale applies:

    Notwithstanding its distinctive name, the doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale. See 4 Patry on Copyright 13:15; see also United States v. Atherton, 561 F.2d 747, 750 (9th Cir. 1977) (“The ‘sale’ embodi

    • I predict Vernor will fall if it makes it to the Supreme Court. It totally conflicts with Bobbs-Merrill vs. Strauss and 17 USC 109 and common sense. If it walks like a sale and talks like a sale then it is a sale.

      Just like Windows, AIX, Oracle, Solaris, etc, buying OS X is not a sale; it is buying a license. The Ninth Court says that these terms are clear in the license agreement. You may disagree but that is they way it has been forever. Just like downloading Linux is not owning it; the GPL also is a license.

      • by burris (122191)

        On the one hand the 9th Circuit that just mailing a disc to a DJ counts as a sale because it has been "placed into the stream of commerce" even though the publisher of the says it isn't. On the other hand they say a disc that's sold in a store in a box like anything else that is sold in stores doesn't count as a sale because the publisher says it isn't. What is the difference?

        • I'm pretty sure you're not reading that right. Do you have a citation of that?
        • What is the difference?

          When you install software, you make a copy of it.

          • by burris (122191)

            When you play a CD you make a copy of it too. How does that affect whether the transaction where you acquire that CD counts as a sale or not? p.s. Making a copy to install software, to use it, or make a backup is not infringement, see 17 USC 117.

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