Apple Responds to Psystar Appeal in Mac Clone Battle

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News about Psystar’s appeal battle against Apple over Mac clones has been thin thanks to the PC maker’s move to keep its Opening Brief sealed. Apple’s Answering Brief, however, wasn’t sealed and offers some insight into Psystar’s tactics.

The two companies have been embroiled in a legal battle over Apple’s claims that Psystar was infringing on its copyrights by building and selling PCs with Mac OS X installed. The court eventually sided with Apple and issued a permanent injunction against Psystar that blocks the company from selling Mac clones, software that helps people install Mac OS X on non-Apple hardware, and from helping people circumvent Apple’s controls that bind Mac OS X to its own hardware.

Psystar kept the legal ball rolling by filing an appeal in the ruling with the Ninth Circuit Court of Appeals earlier this year. In a move that contradicted the company’s earlier tactic of trying to keep all court filings open, however, it moved to keep its Opening Brief in the appeal sealed.

Psystar also filed a case in Florida arguing essentially the same points, but focused on Mac OS X 10.6, or Snow Leopard.

Based on Apple’s responses to Psystar’s Opening Brief, it appears that the PC maker is hoping it can convince the court to change how copyright law is interpreted. “It seems that Psystar is pinning all its hopes in the 9th Circuit on getting the court to adopt a radical revision of the Copyright Misuse doctrine that would in effect destroy copyright and force all copyrighted works to be licensed,” an attorney familiar with this type of case told The Mac Observer.

“Because Psystar has no proof that Apple has inhibited competition or suppressed creativity, Psystar urges this Court to abandon long-standing precedent and create a new doctrine of per se copyright misuse,” Apple’s Answer Briefing stated. “Under this doctrine, any license agreement — such as Apple’s SLA — that restricts the use of copyrighted software to particular hardware is per se copyright misuse.”

Apple added “Psystar’s grossly overbroad per se theory of copyright misuse would eliminate fundamental rights guaranteed by the Copyright Act — the rights to control the reproduction, modification, and distribution of copyrighted works.”

Psystar also claimed in its brief that Judge Alsup, the Judge overseeing the original case, over-stepped his bounds by including Mac OS X 10.6 in his injunction along with Psystar’s own Rebel EFI tool for installing Mac OS X on generic PC hardware. Psystar felt Mac OS X 10.6 shouldn’t be included in the injunction since it wasn’t shipping when the case was originally filed, and the company attempted to argue that the new version of the Mac OS constituted a new product that wasn’t explicitly included in the legal battle.

“Psystar claims the district court should have excluded from the injunction Psystar’s more recent products, such as Rebel EFI, that use Apple’s latest version of Mac OS X (Snow Leopard). Psystar argues for exclusion on the ground that these products are ‘at issue’ in Psystar’s later-filed action in Florida,” Apple said in its brief. “But Psystar seeks to turn the proper analysis on its head: the question is not whether some purportedly new conduct or product should be excluded from the injunction; the question is what infringing conduct was proven and what injunctive relief flows from that proof.”

Exactly why Psystar pushed to keep its Opening Brief in the appeal case sealed is something of a mystery, especially since Apple’s Answering Brief was not.

TMO’s legal contact added “It is ironic for Psystar to petition the court in its Opening Brief to lift the order protecting the secrecy of the measures that Apple uses to protect OS X from running on non-Apple-labeled hardware, because the public has a right and a need to know how the court is deciding this case, while unnecessarily filing its entire Opening Brief under seal so that we won’t know what Psystar’s arguments are, as the court rules on them.”

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Comments

Bosco (Brad Hutchings)

I have been pointing out for two years how Apple software licensing agreements have trended from mildly Draconian to over-the-top oppressive. Even the DMCA did not anticipate such a trend. It’s a shame that it’s Psystar that’s taking Apple on here. At the same time, it’s brilliant that market chose this little engine that couldn’t to keep this alive. There is a strategy building for a much bigger battle, fought by much bigger fish. The strategy will be to drag Apple into court from every conceivable angle. Apple has what on all levels appears to be a slam-dunk legal case with Psystar but just can’t seem to put it to rest. How will things go with HTC and Nokia? Does Apple even have the testicular fortitude to endure those?

John C. Welch

“oppressive”?

Really?

Drama Queen much there?

geoduck

I was talking to my wife about this and her response was “Then what would copyright mean any more?”
Smart Woman.

I get back to something I have been saying for months All these appeals, the destruction of their company. Psystar’s attorneys filing more vacuous claims than Lindsey Lohan’s team. The battle gong on and on with no end in site.

Psystar does not have any money
Attorneys don’t work for free.
They know that they cannot win

Who’s paying for this?

Why?

Bosco (Brad Hutchings)

Two examples of oppressive terms in Apple SLAs:

(1) Snow Leopard’s term against public broadcast or performance of generated speech. Apple used to actively encourage developers to make their apps capable of that. This new term precludes, for example, apps that make movies of storybooks kids have written into videos with the computer reading to them—with resulting videos posted to YouTube or a school web site.

(2) Apple TV’s term prohibiting resale, rent, or other transfer of a legally modified (under open source licenses) Apple TV box. So I install a web server on a refurb Apple TV and now I’m guilty of copyright infringement (via license violation) if I give that box to someone else. Same if I replace the Finder with a digital signage app. It doesn’t pass the smell test on any level, yet that’s the power we’ve given companies like Apple by through the license process.

It is oppressive and stifling. It conveys European “moral” rights in a works where we in the USA have recognized such rights in only the narrowest of realms on a truly exceptional basis.

Corey Tamas

I have been pointing out for two years how Apple software licensing agreements have trended from mildly Draconian to over-the-top oppressive. Even the DMCA did not anticipate such a trend. It?s a shame that it?s Psystar that?s taking Apple on here. At the same time, it?s brilliant that market chose this little engine that couldn?t to keep this alive. There is a strategy building for a much bigger battle, fought by much bigger fish. The strategy will be to drag Apple into court from every conceivable angle. Apple has what on all levels appears to be a slam-dunk legal case with Psystar but just can?t seem to put it to rest. How will things go with HTC and Nokia? Does Apple even have the testicular fortitude to endure those?

The part you seem to be forgetting is that OS X belongs to Apple. You’re talking about it as if it’s public domain or like it’s a basic human right to install OS X wherever you want. Apple created that operating system, Apple paid for its development, Apple did the work. Why, then, should another company that has put nothing whatsoever into that software’s development dictate how and where it’s used?

If you don’t care for Apple, you don’t have to use their products. That’s your option by which to leverage power against them. What isn’t your option, however, is to decide what is done with something that doesn’t belong to you. Neither is it Psystar’s.

Bosco (Brad Hutchings)

Excuse me Corey. See my point about “moral rights” in copyright. We do not have that in the United States except for a very, very exceptional case (IIRC has to do with colorization of old films and was passed by Congress in response to Ted Turner’s colorization rampage in the 1980s). These rights that Apple claims, such as tying to Apple hardware, come from contract, not from copyright. The contract is the shrink wrap license or Software License Agreement (SLA) included with the software, often in printed or electronic form, and rarely read by end-users who may be legally bound by them. Some courts have found them enforceable, others have found them not enforceable (e.g. Autodesk).

While many software developers simply use the contractual stuff to limit warranties and define what “one copy” means consistent with what copyright protection affords them, others like Apple basically carve out new rights for themselves that copyright law does not grant them.

The thing that concerns me the most, from a legal point of view, about Apple’s SLA land grab, is that it pollutes the software licensing environment. Unchecked, it will ultimately provoke legislation in one of two directions: toward granting moral rights in works or toward a legislated uniform license (such as UCITA). I don’t see court imposed compulsory licensing (like Psystar is demanding) as a huge threat. Well, look who’s demanding it. I would hope though, that the courts could find the courage to see the obvious effects of letting companies write their own laws into SLAs and find more of these SLAs either unenforceable or against public policy.

(Added…) Imagine if book publishers added BLA’s (Book Licensing Agreements) to their books. Perhaps one author or publisher decides that their book must not be placed on a shelf within 5 feet of Sarah Palin’s book. That’s the level of ridiculousness that some in the software industry have essentially gone to. Aside from the sheer absurdity of it, it places unreasonably high compliance costs on third party customers who would otherwise do the right thing in the absence of oppressive terms.

John C. Welch

Two examples of oppressive terms in Apple SLAs:

(1) Snow Leopard?s term against public broadcast or performance of generated speech. Apple used to actively encourage developers to make their apps capable of that. This new term precludes, for example, apps that make movies of storybooks kids have written into videos with the computer reading to them?with resulting videos posted to YouTube or a school web site.

(2) Apple TV?s term prohibiting resale, rent, or other transfer of a legally modified (under open source licenses) Apple TV box. So I install a web server on a refurb Apple TV and now I?m guilty of copyright infringement (via license violation) if I give that box to someone else. Same if I replace the Finder with a digital signage app. It doesn?t pass the smell test on any level, yet that?s the power we?ve given companies like Apple by through the license process.

It is oppressive and stifling. It conveys European ?moral? rights in a works where we in the USA have recognized such rights in only the narrowest of realms on a truly exceptional basis.

Restrictive. Not Oppressive. I know it’s popular amongst the stallmanites to act as though software is people, and that you have some kind of inherent “right” to do whatever you want with software and hardware whenever you want, but it’s not people, it’s stuff. You are not “entitled” to anything beyond what your money gets you, contractually.

If you dislike this, by all means, don’t buy apple products. That’s probably your best weapon. But please, stop this entitlement queen sophistry. You do none of the work to create any Apple products you use, yet somehow, in your head, if Apple restricts what you can do with it in any way, shape, or form, they are “oppressing” you.

That’s astoundingly ignorant.

Also, you have no “moral” rights with regard to copyright. You have legal rights. Learn the difference.

Bosco (Brad Hutchings)

John, mix in a trip to Wikipedia to brush up on the concept of “moral rights” grin. The phrase has a specific meaning when discussing copyright.

Also, to call my position similar to Stallman’s is absurd. I support copyright. I make my living off it. I support the use of SLAs to clarify the rough edges particular to software copyright where legislation to do same would only screw things up worse.

But Apple is a gross polluter in this space. If a big company were dumping arsenic into a local river, I assume you would not be telling people who bring that to the community’s attention that if you don’t like the arsenic in the river, your best weapon is to not buy their products. Or maybe you would. At least it would be consistent.

I would just ask you to try to defend those two Apple SLA terms that I brought to your attention. Perhaps you would like to verify them first? In the case of the generated speech term, perhaps you can find somewhere other than in the SLA where Apple announced its intention and reason for changing the rights it grants its customers (“oh glorious Lord Apple”) when it shipped Snow Leopard. Perhaps you can reconcile Apple’s obligations under open source licenses for software it included in Apple TV with the term that prevents a modified device from being transfered in any way to another person.

Nemo

While I am no expert on European and/or French copyright law, I do know enough to say that those, who look to the moral rights in French copyright law for a different result than what I expect from the 9th Cir., are much mistaken.  French copyright law confers on authors all the basic rights of U.S. copyright law (17 U.S.C ? 106) but adds to those rights certain moral rights.  All of those rights belong to the author of the copyrighted work.  Thus, Psystar would be in even more trouble had Apple been a French company in that it would also have infringed on Apple’s moral rights in addition to having infringed Apple’s rights to restrict reproduction, modification, and distribution of OS X.

Here are the French moral rights:

right of publication (droit de divulgation): the author is the sole judge as to when the work may be first made available to the public (Art. L121-2);

right of attribution (droit de paternit?): the author has the right to insist that his name and his authorship are clearly stated;

right to the respect of the work (droit au respect de l’int?grit? de l’oeuvre): the author can prevent any modification to the work;

right of withdrawal (droit de retrait et de repentir): the author can prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him (Art. L121-4); and

right to protection of honour and reputation (droit ? s’opposer ? toute atteinte pr?judiciable ? l’honneur et ? la r?putation).

Adding these rights to Apple’s Section 106 rights would only strengthen Apple’s case.  In particular, the author’s right to prevent modification of its work is nearly unqualified under French law and would have eviscerated Psystar’s defenses even more brutally than the controlling U.S. legal standards.

What is different about the moral rights is that they remain with the author even after assignment of the copyright, but that peculiarity of French copyright law would not help Psystar against Apple.

KitsuneStudios

Yeah, no.

“Moral Right” exist in copyright laws overseas, and cannot be bought, traded, sold or given away. There is nothing in american copyright law that prohibits “moral rights” style agreements into copyright licenses.

Given that most commercial artists have about as much say in the terms of their employment as McDonald’s employees, Moral Rights are never provided for by the individual creators, but is commonly used by all corporations. You do not, for instance, have the right to use music or movies in a public performance without the express permission of the copyright holder; and said holders could refuse permission for any given reason. This was part of the way Lucas pushed the THX specifications throughout american cinemas. The only difference between European and American copyright laws for Moral rights is that in Europe an artist who does Work for Hire Still has moral rights under the Berne convention. The artist can still demand their work not be used if they find the presentation of their art distasteful, modified without permission, or misrepresented in their original agreement. In the US, once you do a work for hire, you relinquish lose all your copyrights to the client.

So it’s a nonsense argument.

Nemo

And one more thing:  The rights that Apple asserts in its SLA for OS X are both contract and copyright.  That is, the rights that Apple asserts in its SLA proceed immediately from its Section 106 rights (17 U.S.C. ? 106) pursuant to the Copyright Act.  Apple’s SLA is essentially and principally, though not exclusively, its license to use its Section 106 rights in OS X as set forth in the license, so that breach of the SLA terms is both infringement of copyright and breach of contract.

Bosco (Brad Hutchings)

Ugh. Nemo, you’re stating the obvious. Yes, much of Apple’s SLAs are standard and necessary boilerplate to secure their copyright rights under. However, the SLAs are contract, and Apple in particular uses its SLAs to extend its rights to a realm similar to moral rights that they do not enjoy under copyright law alone. I do not think we disagree here. Without the prohibition in the SLA against installing Mac OS X on non-Apple hardware (and some related upgrade terms), Psystar could legally conduct its business so long as it bought the requisite numbers of SL disks for systems it sold. My point is that these SLAs appear to enjoy the assumption of the force of law, no matter how Draconian and ridiculous they get.

If you want another example… Consider the SL upgrade disk. The software on it allowed you to upgrade any Mac to SL without “hacking” or otherwise using the software outside what the interface easily allows. The SLA says you can only upgrade from Leopard. If a Tiger user goes and buys Leopard then buys the SL upgrade, said Tiger user is $150 poorer and an a complete chump for doing so. Apple is being a bully and a jerk by effectively using that term for price discrimination between a majority of its customers and the ones who are paranoid. They’re lawyers are criminally ignorant if they didn’t consider that effect before adding the SLA term. Price discrimination—i.e. making it possible for some customers to pay more if they like—is the first week of Business 101. So it begs the question… Should the shrink-wrap contracts that implement creators’ rights under copyright law be allowed to enforce informal price discrimination schemes? Allowing that kind of thing disturbs me two ways. One, it gives a lot of extra arbitrary power to companies like Apple, who seem more than willing to use it. Two, it destroys customer expectations that SLAs are benign instruments to secure rights that already exist. That makes it tougher to do business in the software arena.

KitsuneStudios

The SLA says you can only upgrade from Leopard. If a Tiger user goes and buys Leopard then buys the SL upgrade, said Tiger user is $150 poorer and an a complete chump for doing so.

How is that any different from any other company offering different prices for upgrades than for original versions?

If I buy a software bundle from Adobe, I pay least for upgrading from the previous bundle of the program, I pay more if I’m upgrading from a couple versions prior, even more if I only have one older Adobe product, and most of all If I’m buying a new software package. Those terms are enforced through serial numbers to verify the purchase.

Apple is not unique in this regard.

Bosco (Brad Hutchings)

@KitsuneStudios: You answered your own question. Those terms are enforced through serial numbers to verify the purchase.

Apple wants to have its cake and eat it too. No serial number enforcement, which would give its pricing scheme official clear-cut DMCA protection. But it still wants that protection to the extent it get enough of its customers to be suckers, via its SLA. Apple does not want to pay the price (in decreased convenience for its customers) of having clear legal protection for its pricing scheme, but wants its scheme anyway to the extent that some significant portion of customers will adhere to it. Let me boil down Apple business model on SL upgrades for you:

“Tiger users, SL is $170. But, wink wink, nudge nudge, you can do it for $25. But then you’d be violating out SLA. But we really don’t care, so long as about 20% of you don’t violate our SLA, because 20% of you at $145/each is printing money.”

Ultimately, including unenforceable terms and/or purposely unenforced terms in SLAs just weakens the whole concept of the SLA for everyone. It pollutes the river.

John C. Welch

But Apple is a gross polluter in this space. If a big company were dumping arsenic into a local river, I assume you would not be telling people who bring that to the community?s attention that if you don?t like the arsenic in the river, your best weapon is to not buy their products. Or maybe you would. At least it would be consistent.

Oh look, brad wins the prize for false equivalency, for his stellar comparison of COPYRIGHT to POISONING A RIVER. So very precious. See, here’s the difference:

Clear and present danger.

Arsenic in a river in toxic amounts is a clear and present danger to the health and life of potentially millions.

Care to show the same level of real-world clear and present danger from Apple’s licenses? I’d love to know how those will cause fast painful death.

Or was I not supposed to realize there’s a difference? Yeah. That’s a problem for you I suppose…people who aren’t blindly stupid or binary.

I would just ask you to try to defend those two Apple SLA terms that I brought to your attention. Perhaps you would like to verify them first? In the case of the generated speech term, perhaps you can find somewhere other than in the SLA where Apple announced its intention and reason for changing the rights it grants its customers (?oh glorious Lord Apple?) when it shipped Snow Leopard. Perhaps you can reconcile Apple?s obligations under open source licenses for software it included in Apple TV with the term that prevents a modified device from being transfered in any way to another person.

I don’t defend them, I just don’t have a problem with them. I don’t find them unusual in their terms or limitations, nor do they cause me any problems. If they did, then I’d use another product. Probably without running through the streets of the internet crying like a jilted prom queen.

If you want another example? Consider the SL upgrade disk. The software on it allowed you to upgrade any Mac to SL without ?hacking? or otherwise using the software outside what the interface easily allows. The SLA says you can only upgrade from Leopard. If a Tiger user goes and buys Leopard then buys the SL upgrade, said Tiger user is $150 poorer and an a complete chump for doing so. Apple is being a bully and a jerk by effectively using that term for price discrimination between a majority of its customers and the ones who are paranoid.

That is honestly some of the stupidest freetard tripe i’ve ever read. Let me see if I understand this. Apple, by rewarding it’s regular customers, the ones who upgrade their OS regularly, and are a reliable income stream for Apple is being a BULLY because they AREN’T providing the SAME reward to someone who hasn’t given them a dime of OS revenue since October of 2007 or earlier.

It is absolutely discrimination. It’s called “you’re a regular, steady customer. Because of that, we’re going to give you something: a cheap upgrade.” companies do that all the time. But that requires you to not see upgrade pricing as a “right” that you’re “entitled” to. It’s not, and you’re not. The sooner you get that through your skull, the better off you’ll be.

They?re lawyers are criminally ignorant if they didn?t consider that effect before adding the SLA term. Price discrimination?i.e. making it possible for some customers to pay more if they like?is the first week of Business 101. So it begs the question? Should the shrink-wrap contracts that implement creators? rights under copyright law be allowed to enforce informal price discrimination schemes? Allowing that kind of thing disturbs me two ways. One, it gives a lot of extra arbitrary power to companies like Apple, who seem more than willing to use it. Two, it destroys customer expectations that SLAs are benign instruments to secure rights that already exist. That makes it tougher to do business in the software arena.

Their lawyers aren’t criminally ignorant, but you most certainly are. At this point, you’re way off in tin-foil hat land, only with less thought and logic.

As far as business 101…when was the last time your company was as profitable as Apple? Based on their regular, published performance, I’d say Apple is doing just fine, business-wise, by ignoring your “wisdom”.

John C. Welch

Apple wants to have its cake and eat it too. No serial number enforcement, which would give its pricing scheme official clear-cut DMCA protection. But it still wants that protection to the extent it get enough of its customers to be suckers, via its SLA. Apple does not want to pay the price (in decreased convenience for its customers) of having clear legal protection for its pricing scheme, but wants its scheme anyway to the extent that some significant portion of customers will adhere to it. Let me boil down Apple business model on SL upgrades for you:

Let me boil down brad for you:

“I want everything done my way, according to me, and if they don’t, Apple are as criminal as someone physically poisoning a river. I gave apple money once, and the fact that I don’t get every future version of that product for free, or nearly free is a crime against me…brad…so therefore it is a crime against humanity”

Even for the internet, you’re one of the most ridiculous people i’ve ever encountered.

Nemo

No, we disagree completely.  Any lawyer who advised his client that your understanding of the law is a correct statement of his rights under a license agreement, particularly that it involves only contract and not copyright, would be liable for malpractice.  You have it completely wrong and haven’t slightest idea of what you are talking about.  I can cite numerous case, Apple v. Psystar being one of them, where plaintiff pled both breach of contract and infringement for breach of the license terms, at least as those terms relate to the licensor’s Section 106 rights.  Upon proving breach of the license with respect to the Section 106 rights, the courts always hold that the defendant is liable for both breach of contract and infringement; though it is possible to breach terms of a license that don’t deal with Section 106 rights, and that breach would sound only in contract law. 

However, that is rare and is not the case in Apple v. Psystar.  Alsup, J. held, in particular, that Psystar’s copying of OS X on its computers was infringement of Apple’s Section 106 rights of reproduction, modification, and distribution, notwithstanding Psystar’s claim that it purchased a shrink-wrapped copy of OS X for each of its computers.  And, because that infringement also breached the terms of the SLA, it also was breach of contract. 

In its appeal, Psystar does not dispute that, it is an infringer.  Its defenses were and are all affirmative defenses, which is essentially the statement that, yes, I infringed but I have a legal defense for that infringement.  Unfortunately for Psystar, the court found that those affirmative defenses were without merit and entered judgment for Apple on its copyright and DMCA claims.

That’s a common outcome for copyright infringement cases, because licenses are contracts, but they are contracts that grant permission to use the copyright holder’s Section 106 rights.  Breach the license in ways that exceed your license’s permission to use the licensor’s Section 106 rights, and you’ve breached contract and infringed on copyright.

Bosco (Brad Hutchings)

John, it would be interesting to find out what percentage of SL upgrade purchasers actually upgraded from 10.5. There is significant anecdotal evidence on the net that a significant portion of SL upgrade purchasers did not come from 10.5. I suspect you could also look at Apple’s sales numbers for Leopard and SL upgrades, compare to Mac sales figures, and then reconcile with publicly available system profile statistics and conclude that a big chunk of SL upgraders ignored the SLA. That’s ignoring the popularity of the SL upgrade disk among hackintoshers, who number in the hundreds of thousands.

Nemo, as I said before over and over, Psystar is the most unfortunate defendant for this line of litigation ever. But the courts are not unanimous in granting companies the right to write whatever they want into their SLAs. How do you reconcile what you wrote above with Vernor v. Autodesk? There most certainly are SLA terms which might seem slam dunk which a court could find violate more important public policy priorities. I can guarantee that with the right defendant, Apple’s SLAs would prove to be a candy jar of such excesses.

Bennyboy

Bosco, I understand what you are saying.  Can you give us any examples where Apple has legally enforced the two examples that you give?  I don’t think that I have ever seen anybody get a letter from Apple legal over the two examples you quote.
While I do agree if what you show as example is what Apple legal is trying to enforce, they will have a hard time trying to.  The Apple TV example might be to appease the MPAA so that Apple can continue to evolve the product.  I’m sure you couldn’t do the same thing with other set top boxes.

As far as enforcement of the first example, how would Apple enforce this?  Do they have people scanning YouTube and taking down people’s email Ala RIAA?  I doubt it, it’s a veiled threat.

Now if you compare what Apple is doing VS Psystar, it’s not the same thing.  Psystar argues that they can do whatever they want with the OS since they bought it and can load it onto a non Apple computer.  Which, if you were doing it for personal use, probably wouldn’t even attract Apple’s attention.  But when you try to go after Apple’s customers, then that’s like baiting a shark tank with your genitals.  You’re asking for trouble.  The only thing this will do is cement the hold Apple has on it’s own IP.  Sure it may be cobbled together from open source and if you really want to split hairs, Xerox Parc was created from a government grant which therefore makes anything derived public domain, but who is going to spend all that time in court along with all that money?

By the way, if you think that Psystar is doing this to protect your rights, you’re crazy.  They want the ruling so Dell and HP and others can start selling Mac clones and not have to pay Apple.  Problem is, now that Android is giving away phones and people actually use them (ugh).  How soon before Android becomes the standard for low-cost PCs?

KitsuneStudios

Bosco: That’s ridiculous. That’s like complaining that a person has no property rights because he fails to define his property with razorwire. Apple is no more poisoning the river by relying on an honor system than Adobe is poisoning the river because they don’t use the most restrictive, hassle-prone method of enforcement available.

Bosco (Brad Hutchings)

@BennyBoy: I picked those two examples because they have made me adjust product plans on real software products. The QuickTime one, in particular, made it too complicated to deliver a book-to-movie upload feature for RealeWriter, a product used by tens of thousands of school kids, particularly in disadvantaged schools on Native American reservations and in big city school districts. You’re right about one thing. We did have to consider whether Apple was serious or just blustering with its SLA. In the end though, we concluded that it wasn’t worth finding out. And then it was difficult to figure out whether restricting the software only on Snow Leopard was worth the added confusion to users. Or whether if we shipped it, we were putting our users at risk. Or whether the IANALs in the school districts might even notice and then wonder why we weren’t doing our due diligence and putting them at risk.

The sad thing is that nothing in Apple’s software changed to necessitate a change to the SLA. What did change was that they started that dumb little announce your song name on iPod Shuffle that doesn’t make a sh*t’s worth of difference to anything, and I suspect that’s at least 95% of why they added the SLA term.

I see what you’re saying about just staying below the radar. The problem is that if you’re engaged in commerce, you don’t get to stay below the radar. And it’s your responsibility to know when the radar stations get moved around too. The dynamic makes it too easy for Apple to abuse the right it has and impose significant compliance costs on others in the marketplace, costs which include removing features from products or having to support crippled versions for different versions of Apple OS that differ only by SLA term in the affected areas.

Bosco (Brad Hutchings)

@KitsuneStudios… Then the DMCA is ridiculous, because that’s exactly what it does. It afford additional legal protections to copyrighted works that are “protected” by some technological means, and makes the trafficking of anti-circumvention devices illegal unless exempted by the US Copyright Office. The law actually established more enforceability for those who go to an effort to protect their rights. Apple, OTOH uses “the honor system”, which in its case is simply a price discrimination system for chumps, or, put less bluntly, a $150 tip jar for a $25 product.

b9bot

Bosco, Apple has a right to protect there property and there investments which include 0SX.
Apple isn’t stopping Psystar from buying OSX. They are stopping Psystar from selling it as there own product with there own cheapy garbage PC’s. What’s even worse is they name there products like Macs including Xserves. Again that is an Apple product which belongs solely to Apple.
Selling Apple’s Server software as there own as well.
You need a license from Apple to sell anything that has an Apple logo on it or brand name on it. That costs money, Psystar thinks just because they buy a box they can sell it. Well it doesn’t work that way, and that goes for every company out there. Microsoft also licenses there software for sale. You can’t just buy a box and then sell it with your own products as your own.

webjprgm

Some thoughts:

Consumers do not have sufficient power to change companies.  They can “vote with their dollar” but only by choosing a competing product or nothing at all.  They often end up choosing the most “good enough” product.  Companies make products for “the good of the many.”  By this I mean the selection of features they include does not please everyone, and the restrictions they put on usage will make some unhappy.  The capitolist solution would be to create your own company to “do things right” in your way.  However, most consumers do not have the expertise, resources, or connections to do so.  Even if they did, many such startups would be easily crushed by the existing, larger competitors, possibly through claims of patent violations and copyright infringement.  Hence consumers don’t have as much power as some commentors hint at when they say “just don’t buy Apple products.”

Therefore it is natural that we seek for other measures to protect us.  The US Constitution sets up majority rule, but with protections for minorities.  Legal agreements forced on the consumer, like SLAs, should therefore be kept fair.  But what is fair?  Is it fair for Apple to restrict it’s OS to it’s own hardware?  What about restricting the programming languages uses to write iPhone apps?  What about limiting what programs can be written for Snow Leopard?  I don’t know a solution (partly because I don’t fully understand the problem and all the implications of potential solutions), but I think there is definitely an issue around “what is fair” that ought to be solved.

Pystar’s claim is basically that Apple puts unreasonable restrictions on their software.  The particular restriction, however, is one that is widely supported, namely the ability to control where and how some intellectual property is used.  They probably should have spent their efforts making a better Mac OS X like OS using Linux or maybe Darwin plus one of the “better finder” applications.  I think the truly overbearing restrictions from Apple are when they dictate what software we can use with, on, and for Mac OS and iOS, since those are not works that they own, just works that in some way depend on Apple’s products.  That is the “what is fair” question for me.

(So… If I sold you a hammer and said you could only use it on nails you bought from me, or I sold you a two-by-four and said you could only use it to build a dog house, would that be fair? What if I was the only maker of two-by-fours, and the only other option was a four-by-four by a competitor with his own set of restrictions? Software intellectual property is in many ways closer to tools and building supplies than it is to art.  Maybe that’s the problem, we’re using laws meant for art to govern tools.)

Bosco (Brad Hutchings)

Well it doesn?t work that way, and that goes for every company out there. Microsoft also licenses there software for sale. You can?t just buy a box and then sell it with your own products as your own.

Untrue. For starters, look up the First Sale Doctrine. Then, lookup up Vernor v. Autodesk.

Psystar wasn’t careful. In fact, they were completely clueless. But they most certainly could have sold a beige box bundled with a SL DVD and printed installation instructions and likely forced Apple to sue someone else. It would be up to Apple to figure out how to keep large quantities of SL DVDs out of such a reseller’s hands.

downquark

I know that this isn’t the done thing on that bastion of free speech that is the Internet, but, speaking personally, I just wish Bosco would shut up and go away! He is so tiresome!!

geoduck

I know that this isn?t the done thing on that bastion of free speech that is the Internet, but,..

On the right side of the posts there is a little icon that looks like a gear. Roll over that and you have an option to Ignore Member. I Ignored Bosco some months ago and have been much happier without the vacuous drivel.

(That is until last week when Ignored users started displaying anyway. It’s a DB error and I’m sure TMO is working to fix it. Hope so.)

downquark

geoduck, thanks for the tip. Once the functionality is fixed I will be on it like a shot. Love the vacuous drivel description, it is spot on! Dare I say, “Gone in a Flash?”

Bosco (Brad Hutchings)

(That is until last week when Ignored users started displaying anyway. It?s a DB error and I?m sure TMO is working to fix it. Hope so.)

Yeah, I know what you mean geoduck. I saw one of your posts and it made me throw up in my mouth.

Vulpine

I have to say that while the debate here is as hot as most other boards, at least the discussion is more civil, even if as poorly thought out in some cases.

Allow me to try and present a simile as Psystar would have it, then as Apple wants it—based on book publishing, which isn’t all that different.

Psystar says, “I bought the book and I have the right to do anything I want to with it, even to creating an electronic copy and giving it away with every eBook reader I make. I merely include the price of the book as part of the reader’s price.”

Apple says, “You bought the book, but you do NOT have the right to do anything with it but read it as it is meant to be read. You do NOT have permission to create copies; you do NOT have permission to make changes and you do NOT have permission to sell copies even if you include an unopened copy of the book with the package. By creating and/or modifiying copies to distribute for a profit, you both breach copyright law and the contract which you agreed to upon opening your purchased copy of the book.”

Does this make sense? If you were an author (and I am), you would not want some stranger to take your hard work and sell it to others without paying full royalties for every single copy sold. However, since I didn’t give you permission to make those copies in the first place, then you are effectively stealing from me and I would personally want to bankrupt you and put you in jail for as long as possible to prevent a recurrence of that theft.

The Disney corporation still owns full copyrights on all of its movies dating from Walt Disney’s first Micky Mouse cartoon. The Disney corporation comes down pretty hard on anyone who breaches that copyright beyond the limits set by law. Apple is doing no less and they are trying to make certain that nobody else tries to repeat the effort.

Nemo

In Apple v. Psystar, Alsup J. held that the First Sale Doctrine (17 U.S.C. ? 109) does not apply to illegal copies.  Since the court found that all of the copies made by Psystar were illegal, in that they resulted from infringement, breach of contract, and/or violation of the DMCA, the First Sale Doctrine simply did not apply.  Therefore, Psystar First Sale defense failed. 

And since the court held that First Sale doctrine does not apply to Psystar’s illegal copying, the issued in Vernor v. Autodesk of whether a the transfer of software constituted a sale or lease did not arise in Apple v. Psystar; thus, Vernor had no application to the dispute between Apple and Psystar.

A word about Vernor.  That case is on appeal to the U.S. Ninth Circuit Court of Appeals.  It is unlikely that the 9th Cir. will hold that all transfer of software are and must be sales.  The most likely outcome is that the 9th Cir. will set forth the legal standard for what circumstances constitute a sale of software and what circumstance constitute a lease of software.  Whether Autodesk’s claims will conform to that standard remains to be seen.  However, whether the 9th Cir. reverses Vernon and holds for Autodesk that it leased and not sold it software or whether it concludes that transaction was a sale, once parties know what constitutes a lease, leases and sales transactions will be reformed according so that all or nearly all software will be leased.

I think, however, the Autodesk has decent chances on appeal and, if it loses in the 9th Cir., decent, if not better than decent, chances on an appeal to the ultimate tribunal, The United States Supreme Court.

Furutan

Focusing OSX on Apple’s own machines means that it does not have to support every piece of cheap hardware that comes down the pike, every manufaturer of which is always striving to differentiate their products from the competition. It means that if some slapped together machine is crash prone or suffers from some sort of bottleneck or failure due to overclocking, junk RAM, or anything else, users won’t automatically assume that the problem is with the operating system - and believe me, that is exactly what would happen.

Apple has the right to protect its operating system. No matter how strict, licensing would inevitably result in a lot of dissatisfied users.

nervus

When did Apple sell a stand alone Operating system? My understanding was that Apple only sells OS upgrades. Which would required a previous eligible version of the OS.

On a bit of a tangent. But why should Apple not be afforded the same rights and privileges that Nintendo, Sony, and Microsoft enjoy with their console systems. From my point of view Apple sells closed systems where the hardware and software are paired together with the sole intent that they be used together. Console systems today are in fact computers. Containing hard drives, processors, memory, video cards, etc. Would Microsoft not be fighting the same battle if someone was trying to sell a clone 360?

Furutan

BTW, about PsyStar, I am in a business in which I have to content with Asian manufacturers on a regular basis. While some are honest, I have found that many, including those who may handle millions of dollars of repeat production business every year for the same US company, sometimes try to get away with things. For example, they may quote on one quality of substrate, swap it for a cheaper quality at production, let it sit in a warehouse until it is weeks from the deadline for store shelves and then force you to accept the merchandise because you have no other choice. In another case, they may farm it out to a smaller, cheaper manufacturer in return for a kickback and then pretend that the lower quality was not their fault.
This kind of nonsense requires unbribable reps of the US companies to be onsite to ensure honesty and quality.

If this is the state with long-term high-volume partners, what does this say for the smaller companies who are out for a buck? Cheating, bootlegging and legal wrangling are the hallmark of such firms, including those who setup a headquarters in the US.  Psystar is not some oppressed small fry struggling for its rights. This is a shyster outfit trying to get away with whatever they can.

Furutan

When did Apple sell a stand alone Operating system?

You can take a retail copy of 10.5, wipe your drive of 10.6 and install it. As long as the hardware is compatible, this has always been the case. I remember moving from System 6 to System 7. The two had almost nothing in common. Rather than upgrading, the only option was to do a clean install.

nervus

You can take a retail copy of 10.5, wipe your drive of 10.6 and install it. As long as the hardware is compatible, this has always been the case. I remember moving from System 6 to System 7. The two had almost nothing in common. Rather than upgrading, the only option was to do a clean install.

You can do the same thing with any Windows Upgrade CD back to win95. All OS CD/DVDs contain the entire OS on them. But Apple, if I am not mistaken, only markets their OS Cds as upgrades and not stand alone which makes a difference. Microsoft sells full and Upgrade versions of their OS in contrast.

rar

The thing I’m wondering about is the reasoning about fair use—that a very small amount of code is changed. I wouldn’t be suprised that a similar extremely small percentage of code is changed in what is necessary to get a hackintosh to run.

Mel

I find it interesting the debate going on here. It’s actually quite simple. Apple packages code, distributes it through multiple sources, and you can buy it - but Apple claims it’s theirs and you can only use it how they say so.

The simple truth is, as soon as you make that transaction, the product no longer belongs to its creator - though there are limits on copying it (i.e., copyright) which lie with the owner of said copyright. Apple claims that installing it on a box of electronics they didn’t create as a violation - even if I were to purchase the parts from the separate manufacturers of the exact pieces used on an Apple computer individually and assemble them myself.

Apple makes wide claims on the use of software, but just because something is in an EULA does not mean it’s legal, nor does it mean you are bound to the portions that are in violation of laws. Apple lawyers have obviously read books on contract law, but choose to ignore the farce that is their EULA.

However, the difficult issue, as Psystar has discovered, is that you have to pick apart those holes in the agreement one at a time.

Interesting how Apple and AT&T said the iPhone was theirs and to jailbreak it to switch to a different carrier was illegal. Remember how that one went?

John C. Welch

The simple truth is, as soon as you make that transaction, the product no longer belongs to its creator - though there are limits on copying it (i.e., copyright) which lie with the owner of said copyright. Apple claims that installing it on a box of electronics they didn?t create as a violation - even if I were to purchase the parts from the separate manufacturers of the exact pieces used on an Apple computer individually and assemble them myself.

I love that point, that somehow copyright has some meaning, even though as soon as you license something, well, sucks to be you. Well, not as much as my wife, who gets it flung back in her face every time she has to file a DMCA notice to get some hack to take down the artwork they stole from her. Never is payment or even asking considered. After all, if she didn’t want it stolen, why would she put it on the internet.

The best, the absolute best is when they carefully remove my wife’s copyright, so that they can put their copyright on it, and then usually accompany that with “don’t steal art”.

The funny part, you know what she’s found? the bigger the company, the more reasonable they are. Maybe it’s because having your stuff stolen all the time makes you far more embarassed when you discover you’ve done it, even unintentionally. It’s the “OMG, FAIRIES!!!111” prats that give her the most lip.

Patrick Heflin

I’m just joining the conversation, but I have a question. If Microsoft can get sued by the US federal government on charges of owning a monopoly, merely because their “Internet Explorer” program was the only web browser that came with the OS; then how is it that Apple can get away with, not only producing a computer that only runs their OS, but creating a OS that is only allowed to be run on their computers?

First off, yeah I know that was a long sentence. Secondly, I do agree that Psystar has over stepped copyright laws by altering Apple’s OS coding. But on the other hand, I think Apple should be required to at least offer a copy of their OS that can be installed on any computer.

I know some people will argue that I should just not use Apple as a form of protest, or Apple is only the 3rd most popular OS in the world, they can’t have a monopoly. Unfortunately, I don’t have that luxury. I work in the TV/Film business where Apple does have a monopoly. The industry standard is Final Cut Pro, and there is no PC program that comes close to it. Anyone who wants their own setup, or a small company just starting out has to get an outrageous loan just to buy all the basics. PC’s on the other hand, either being purchased pre-made or DIY, cost only a quarter of what a Mac does, and be made to preform higher ‘to boot!’

John C. Welch

I?m just joining the conversation, but I have a question. If Microsoft can get sued by the US federal government on charges of owning a monopoly, merely because their ?Internet Explorer? program was the only web browser that came with the OS; then how is it that Apple can get away with, not only producing a computer that only runs their OS, but creating a OS that is only allowed to be run on their computers?

Because that wasn’t why they got sued. They didn’t get sued just for shipping IE with the OS. They got sued for:

1) Actively threatening ISVs that shipped with Netscape installed
2) actively working with ISPs to exclude Netscape as an option
3) Threatening ISPs/ISVs that didn’t go IE only
4) bribing partners to be IE only

Keep in mind, contrary to popular belief, the simple existence of a monopoly is not illegal. Not even slightly. It is using that position to actively prevent any and all competition that is the problem.

Since Microsoft had 90%+ of the non-mainframe market at the time, they had immense power to cause Netscape or any other browser maker massive problems.

Apple has control over the iPad and the iPhone, however, that’s not a monopoly. Apple doesn’t have a majority share of either the smartphone market or the tablet market, or really, any market outside of perhaps MP3 players.

So to say Apple is some kind of monopoly outside of MP3 players and the iTMS is to be completely ignorant of the word.

Pystar Fan

There’s a simple solution to this mess.

Instead of selling computers with OSX pre-installed, why not sell computers that have the same specs as current Macs - that are nearly 100% compatible.

The end user would be required to buy a copy of OSX and find (on their own, not hard to do) a utility that will do all the hard work of installing OSX on their computer?

Don’t mention OSX in the ads. They already have a reputation of selling Mac clones. The forums will spread the word.

So, Pystar, if you’re still in business, this is what I think you should do.

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