Originally Posted by Dr Millmoss
First, how does the "rate" they paid make any difference? Second, we don't actually know how much they paid. Apple demanded these records in discovery but Psystar claimed to have lost them. The difference is that they are not simply transferring ownership, they are installing the software on their hardware first. It's no more than a theory that this protected under first use doctrine, which was created to allow owners of copies of copyrighted products to sell them to someone else, not to allow someone to trade on copyrighted materials.
I'll repeat my question: If they are, indeed, the legal owners of the disc containing copyrighted material, please cite the law or precedence that says that first sale doctrine would not apply to them.
You are suggesting that somehow, for the purposes of copyright infringement, there's a distinction between a company buying a product for the purpose of commercially reselling it, versus an individual buying a product, using it for a while, then selling it second-hand at a later date. I suggest that there is no such distinction, and I have asked you to provide a citation to prove me wrong. So far you have sidestepped the issue, rather than actually answering my central point.
Until you can do otherwise, I will assume it's because there is no such precedence, and case law makes no such distinction.
This is a HUGE fallacy. They are in fact attempting to sell Macintosh computers. If that was not the case, then they would not even bother. Psystar can't even claim otherwise with a straight face, if only because they attempted to sue Apple under antitrust law for preventing them from doing that very thing!
So exactly which aspects of selling a Macintosh computer (as you choose to define it -- you have not proven that your definition is the "correct" one) require Apple's permission?
- The trademark? Absolutely, it requires permission. If they are using any of Apple's trademarks in infringing ways, then they must cease doing so, or revise their practices to make their use non-infringing. What constitutes infringement of their trademark? Certainly, there do exist situations in which it is possible for me to use another company's trademark, properly cited, without the competitor's permission. For example, when making a factual statement about system requirements: "This program is designed to run on Microsoft Windows XP Service Pack 2 or higher, or Mac OS X 10.4.11 or higher." Does Psystar's use of Macintosh-related trademarks constitute infringement? That discussion deserves a whole thread of discussion of its own.
- The copyright? I stand by my opinion that copyright law, on its own, may or may not prohibit it, depending on the legal status of the copy of the software that's actually been installed on the hard drive with respect to USC Title 17 Section 117. (By the way, the interpretation of the word "adaptation" as I have raised it thus far in this thread has nothing to do with the DMCA -- the law and associated court precedent in question had existed for around a decade, at least, before the DMCA came along.) Therefore, in order for it to be mandatory to obtain Apple's permission, it follows that such a requirement most likely arises out of the existence of some additional terms above and beyond those imposed by basic copyright. Such as the terms imposed by an EULA.
- Other aspects I haven't named here?